Port State Jurisdiction

International Max Planck Research School for Maritime Affairs
H A M B U R G S T U D I E S O N M A R I T I M E A F FA I R S 2 6
at the University of Hamburg
Bevan Marten
Port State Jurisdiction

and the Regulation
of International
Merchant Shipping
123
International Max Planck Research School (IMPRS)
for Maritime Affairs
at the University of Hamburg
For further volumes:

http://www.springer.com/series/6888
Hamburg Studies on Maritime Affairs
Volume 26
Edited by
Jürgen Basedow
Monika Breuch-Moritz
Peter Ehlers
Hartmut Graßl
Tatiana Ilyina
Florian Jeßberger
Lars Kaleschke
Hans-Joachim Koch
Robert Koch
Doris König
Rainer Lagoni
Gerhard Lammel
Ulrich Magnus
Peter Mankowski
Stefan Oeter
Marian Paschke
Thomas Pohlmann
Uwe Schneider
Detlef Stammer
Jürgen Sündermann
Rüdiger Wolfrum
Wilfried Zahel
Bevan Marten
Port State Jurisdiction and the

Regulation of International
Merchant Shipping
Bevan Marten
School of Law
Victoria University of Wellington
Wellington
New Zealand
Dissertation Zur Erlangung der Doktorwürde an der Fakultät für Rechtswissenschaft der
Universität Hamburg
Vorgelegt von: Bevan Marten
Erstgutachter: Prof. Dr. Dr. h.c. mult. Jürgen Basedow LL.M. (Harvard)
Zweitgutachter: Prof. Dr. Dr. h.c. Marian Paschke
Tag der mündlichen Prüfung: 30.01.2013 (Vorsitzender Prof. Dr. Ulrich Magnus)
ISSN 1614-2462 ISSN 1867-9587 (electronic)

ISBN 978-3-319-00350-4 ISBN 978-3-319-00351-1 (eBook)
DOI 10.1007/978-3-319-00351-1
Springer Cham Heidelberg New York Dordrecht London
Library of Congress Control Number: 2013947094
© Springer International Publishing Switzerland 2014

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For Sarah
ThiS is a FM Blank Page
Preface
This book arose from a doctoral thesis undertaken between 2010 and 2012 at the
Max Planck Institute for Comparative and International Private Law in Hamburg,
supported by a scholarship from the International Max Planck Research School
for Maritime Affairs. I was first introduced to the complexities of port state
jurisdiction by my New Zealand maritime mentor, John Burton, but could then
never have imagined that I would end up devoting so much time to the topic.
Thankfully I was reintroduced to its scholarly potential by my supervisor, Profes-
sor Dr Dr h.c. mult. Jürgen Basedow, who has since provided me with so much
support.
In the course of my research, I have become particularly indebted to Henrik
Ringbom and Erik Molenaar, not only for meeting with me and providing feedback
but also for the impressive body of scholarly writing that each has already
contributed to this field. For practical guidance, I am grateful to Gosia Nesterowicz
and Holger Meyer of the European Maritime Safety Agency.
I would like to acknowledge the support of my many friends and colleagues at
the Institute over the course of my studies, in particular the Research School
coordinators Dr Anatol Dutta, Barbara Krah, and Vera Wiedenbeck. The Directors
of the Research School have also provided a great deal of assistance. I especially
enjoyed the outings arranged for the scholars’ benefit by Professor Ehlers and the
insights offered by Professor Lagoni.
My time in Hamburg would not have been the same without the Summer
Academy of the International Foundation for the Law of the Sea, organised by
the ever-generous Jo König. Bettina Heiderhof deserves endless thanks for the
Programme in European Private Law for Postgraduates, which brought together a
wonderful group in Hamburg, Katowice, Cambridge, and Valencia.
Family support from teams Marten, Hooper, and Schraders was invaluable. Bill
and Geoff were always on call. I would never have got to Hamburg without Jens
vii
viii Preface
Scherpe. I would never have lasted the distance there without Sarah, who landed in
minus 14 degrees a week after our summer wedding and stood by me throughout a
long and eventful “honeymoon”.
Wellington Bevan Marten
April 2013
Abbreviations
AC Appeal Cases
AISR Australian International Shipping Register
CA Court of Appeal
CDEM Construction, design, equipment and manning
CLIA Cruise Lines International Association
CLR Commonwealth Law Reports
DC District Court
ECJ Court of Justice of the European Union
EEZ Exclusive economic zone
ER English Reports
EU European Union
ExCh Div Exchequer Division
F 2d Federal Reporter, second series
F 3d Federal Reporter, third series
FBI Federal Bureau of Investigation
FCA Federal Court of Australia
F Supp Federal Supplement
GAIRS Generally accepted international rules and standards
HCA High Court of Australia
HC Ad High Court of Admiralty
ICJ International Court of Justice
ICJ Rep International Court of Justice Reports
ILO International Labour Organization
ILR International Law Reports
IMO International Maritime Organization
IR Industrial Reports
ITLOS International Tribunal for the Law of the Sea
Lloyd’s Rep Lloyd’s Law Reports
LN Legal Notice
LR CCR Law Reports, Crown Cases Reserved
MARPOL International Convention on the Prevention of Pollution from Ships
ix
x Abbreviations
MLC Maritime Labour Convention

NILOS Netherlands Institute for the Law of the Sea
NZLR New Zealand Law Reports
OJ Official Journal
Paris MOU Paris Memorandum of Understanding on Port State Control
PC Privy Council
PCIJ Permanent Court of International Justice
PD Probate Division
PSSA Particularly Sensitive Sea Area
QB Queen’s Bench
SC Supreme Court
SI Statutory Instrument
SLR Singapore Law Reports
SOLAS International Convention for the Safety of Life at Sea
STCW International Convention on Standards of Training, Certification
and Watchkeeping for Seafarers
TFEU Treaty on the Functioning of the European Union
UNCLOS United Nations Convention on the Law of the Sea
UNCTAD United Nations Conference on Trade and Development
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Why “Port State Jurisdiction”? . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 An Unlikely Trio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 Background to Port State Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 7
2.1 The Concept of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.1.1 Territorial Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1.2 Jurisdiction Over Nationals . . . . . . . . . . . . . . . . . . . . . . . 9
2.1.3 Extraterritorial Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 10
2.1.4 General Limits on States’ Prescriptive Jurisdiction . . . . . . 11
2.2 Jurisdiction Over Vessels Under UNCLOS . . . . . . . . . . . . . . . . . 14
2.2.1 Flag State Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2.2.2 Coastal State Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.2.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.3 What Is a Port? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.3.1 Defining “Port” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.3.2 Ports and Territorial Jurisdiction . . . . . . . . . . . . . . . . . . . 22
2.3.3 The Practicalities of Ports . . . . . . . . . . . . . . . . . . . . . . . . 23
2.3.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.4 Jurisdiction Over Vessels in Port . . . . . . . . . . . . . . . . . . . . . . . . 25
2.4.1 Basic Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.4.2 Convention-Based Limitations . . . . . . . . . . . . . . . . . . . . . 26
2.4.3 Other Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.5 Port Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.5.1 A Customary Right of Access? . . . . . . . . . . . . . . . . . . . . 31
2.5.2 Access Rights by Agreement . . . . . . . . . . . . . . . . . . . . . . 33
2.5.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.6 Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
xi
xii Contents
3 The Growth of Port State Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 37

3.1 Historical Development of Port State Jurisdiction and
Shipping Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.1.1 Early Approaches and Flag State Dominance . . . . . . . . . . 37
3.1.2 The Modern Maritime Regulatory Environment . . . . . . . . 42
3.1.3 The Rise of Port State Control . . . . . . . . . . . . . . . . . . . . . 46
3.2 The Current Scope of Port State Jurisdiction . . . . . . . . . . . . . . . . 49
3.2.1 Traditional State Interests . . . . . . . . . . . . . . . . . . . . . . . . 49
3.2.2 International Conventions . . . . . . . . . . . . . . . . . . . . . . . . 51
3.2.3 Vessel Safety and the Marine Environment . . . . . . . . . . . 53
3.3 Pushing the Boundaries of Port State Jurisdiction . . . . . . . . . . . . . 53
3.3.1 Is the Measure Worth the Costs? . . . . . . . . . . . . . . . . . . . 54
3.3.2 Coastal State Jurisdiction Versus Port State Jurisdiction . . . . 56
3.3.3 What to Target? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
3.3.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
4 Port States Taking Charge: The United States’ Cruise
Vessel Security and Safety Act 2010 . . . . . . . . . . . . . . . . . . . . . . . . . 63
4.1 Background to the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
4.1.1 Legislative Background and Industry Response . . . . . . . . 63
4.1.2 Scope of the Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
4.1.3 The Act in Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
4.2 Measure Based on Port State Jurisdiction? . . . . . . . . . . . . . . . . . . 72
4.2.1 When Does the Act Begin to Apply? . . . . . . . . . . . . . . . . 73
4.2.2 Could the Act Have Been Applied More Widely? . . . . . . . 74
4.2.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
4.3 Requirements Affecting Vessel Conditions . . . . . . . . . . . . . . . . . 78
4.4 Requirements Affecting Vessel Operations . . . . . . . . . . . . . . . . . 82
4.4.1 Video Surveillance Requirement . . . . . . . . . . . . . . . . . . . 83
4.4.2 Passenger Cabin Access . . . . . . . . . . . . . . . . . . . . . . . . . 84
4.4.3 The Extraterritorial Temptation . . . . . . . . . . . . . . . . . . . . 84
4.4.4 UNCLOS and Vessel Operations . . . . . . . . . . . . . . . . . . . 87
4.4.5 Other Jurisdictional Avenues . . . . . . . . . . . . . . . . . . . . . . 92
4.4.6 Port Entry Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
4.4.7 Other Legislative Techniques . . . . . . . . . . . . . . . . . . . . . . 111
4.4.8 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
4.5 Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
5 Port States Behind the Scenes: The European Union’s 2009
Insurance Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
5.1 Background to the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
5.1.1 Legislative Background and Industry Response . . . . . . . . 117
5.1.2 Scope of the Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
5.1.3 The Directive in Context . . . . . . . . . . . . . . . . . . . . . . . . . 124
Contents xiii

5.2.1 Legislative Background to the Port State Approach . . . . . . 129
5.2.2 Could the Directive Have Been Applied More Widely? . . . 130
5.3 Interaction with Pre-existing International Conventions . . . . . . . . 133
5.3.1 Going Beyond a Convention—Legal Considerations . . . . . 134
5.3.2 The Directive’s Impact on International Policy . . . . . . . . . 136
5.3.3 Inconsistencies with the 1976 Convention . . . . . . . . . . . . 140
5.3.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
5.4 Requirements Affecting Vessel Administration . . . . . . . . . . . . . . 148
5.4.1 Regulating Vessel Administration . . . . . . . . . . . . . . . . . . 150
5.4.2 Enforcement Considerations . . . . . . . . . . . . . . . . . . . . . . 153
5.5 Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
6 Port States and Seafarers: Australia’s Maritime Employment
Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
6.1 Regulating Maritime Employment . . . . . . . . . . . . . . . . . . . . . . . 161
6.1.1 Domestic Trade Considerations . . . . . . . . . . . . . . . . . . . . 162
6.1.2 Crew Costs and Flagging-Out . . . . . . . . . . . . . . . . . . . . . 163
6.1.3 Regulating Maritime Employment Conditions . . . . . . . . . 164
6.1.4 The Private International Law Dimension . . . . . . . . . . . . . 166
6.1.5 The Public International Law Dimension . . . . . . . . . . . . . 167
6.1.6 The Scope for Unilateral Regulation . . . . . . . . . . . . . . . . 168
6.2 Australia’s Approach to Maritime Employment . . . . . . . . . . . . . . 171
6.2.1 Background to the Fair Work Legislation . . . . . . . . . . . . . 172
6.2.2 Application of the Fair Work Legislation
to Foreign-Flagged Vessels . . . . . . . . . . . . . . . . . . . . . . . 173
6.2.3 Substantive Requirements of the Fair Work Legislation . . . . 177
6.2.4 Industry Reaction and the 2012 Reforms . . . . . . . . . . . . . 181
6.3.1 Vessels in Port . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
6.3.2 Vessels Outside of Port . . . . . . . . . . . . . . . . . . . . . . . . . . 185
6.3.3 A Carefully Framed Challenge . . . . . . . . . . . . . . . . . . . . . 190
6.4 Port State Jurisdiction and Employment Matters . . . . . . . . . . . . . 192
6.4.1 Employment and Vessel Operations . . . . . . . . . . . . . . . . . 195
6.4.2 Employment and Vessel Administration . . . . . . . . . . . . . . 197
6.5 Port State Jurisdiction and Cabotage Restrictions . . . . . . . . . . . . . 199
6.6 Private International Law Considerations . . . . . . . . . . . . . . . . . . 202
6.6.1 Application of Rome I to Seafarers’ Employment
Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
6.6.2 Overriding Mandatory Provisions . . . . . . . . . . . . . . . . . . . 207
6.6.3 Ordre Public . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
6.7 The Substantial Connection Approach to Jurisdiction . . . . . . . . . . 210
6.7.1 The Development of the Substantial Connection
Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210
6.7.2 Substantial Connection and the Act . . . . . . . . . . . . . . . . . 218
6.8 Chapter Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
xiv Contents
7 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
7.1 Overview of Port State Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 223
7.2 Port State Jurisdiction Is Growing . . . . . . . . . . . . . . . . . . . . . . . . 225
7.3 The Silence of Flag States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228
7.4 The Future of Port State Jurisdiction . . . . . . . . . . . . . . . . . . . . . . 231
7.4.1 Rules on Vessel Conditions Are Here to Stay . . . . . . . . . . 232
7.4.2 Rules on Vessel Operations Are Going to Expand . . . . . . . 233
7.4.3 Rules on Vessel Administration Create Enforcement
Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235
7.4.4 The Substantial Connection Approach . . . . . . . . . . . . . . . 236
7.5 Final Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
Table of Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
Table of International Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269
Chapter 1
Introduction
This book essentially focuses on the extent to which the following statement holds
true: “If you want to visit my port, you have to follow my rules.” When, if ever,
does a port state exceed its jurisdiction under international law in dictating to
foreign vessels the standards they must meet, or the way in which they must be
operated? The growing use of port state jurisdiction to regulate the thousands of
merchant vessels plying international trade routes on a daily basis makes this topic
central to the future of international shipping regulation.
1.1 Why “Port State Jurisdiction”?
“Port state jurisdiction” is the term given to the jurisdiction a state may exercise
over vessels visiting its ports. It is primarily a term of public international law, and
is often used in distinction to “coastal state jurisdiction”, which refers to a state’s
jurisdiction over its maritime zones1 more generally, and “flag state jurisdiction”,
which refers to the jurisdiction exercised by the state in whose registry a vessel is
entered and under whose flag that vessel operates. The ports in question are those
used by seagoing vessels, as opposed to airports or ports dealing solely with inland
trade. The visiting vessels referred to are implicitly foreign-flagged vessels, as no
significant questions of international law arise when a state exercises jurisdiction
over vessels that visit its ports while operating under its own flag.
Issues of shipping regulation are frequently presented as a contest between
“maritime states” and coastal states, with the former aiming to protect local
shipping interests, and the latter trying to protect their environmental interests
from the potentially harmful effects of substandard vessels. The debate over the
1
This term is used throughout this book to describe collectively the areas of sea over which a
coastal state may exercise a level of control in accordance with UNCLOS, primarily its internal
waters, territorial sea and exclusive economic zone.
B. Marten, Port State Jurisdiction and the Regulation of International Merchant 1

Shipping, Hamburg Studies on Maritime Affairs 26,
DOI 10.1007/978-3-319-00351-1_1, © Springer International Publishing Switzerland 2014
2 1 Introduction
level of jurisdiction that ought to be exercised by the respective players, and in

relation to which aspects of a ship and its operations, has been ongoing for decades,
notwithstanding the success of the United Nations Convention on the Law of the
Sea (UNCLOS).2
Why then separate out “port states” in this context given that, for obvious
geographical reasons, any state operating a port is also likely to have jurisdiction
over a stretch of coastal water? Although it is true that to some extent a state’s
interests as a port state coincide with its interests as a coastal state, a combination of
legal and practical elements means that states increasingly choose to act specifically
in their port state capacity when regulating international shipping. The principal
legal reasons relate to the ability of the port state to rely on its territorial jurisdiction
when vessels voluntarily enter its ports, without the restrictions associated with the
vessel’s right of innocent passage through the territorial sea. The principal practical
reasons concern the central place of ports in maritime trade, and their convenience
as points of control for state authorities.
While the idea of the port state as a “distinct jurisdictional entity” came to
prominence only in the text of UNCLOS,3 the concept of exercising jurisdiction
over visiting foreign vessels in port is of course far older.4 However, prior to the
nature and extent of a state’s jurisdiction over foreign vessels in its territorial sea
being substantively settled, it was harder to distinguish a port-specific exercise of
jurisdiction from coastal state regulations more generally under international law.
UNCLOS ultimately achieved a significant level of clarification in relation to the
territorial sea but, crucially for the purposes of this work, it does not codify all
aspects of the law of the sea,5 and in particular does not deal comprehensively with
the nature of a state’s authority over foreign vessels visiting its ports.6 Instead it is
necessary to pick up on those few provisions that do refer to a state’s internal waters
or ports, and assess these together with the provisions of other relevant treaties and
principles of customary international law in order to gain a clearer picture.
A degree of confusion in some of the literature in this field can be traced to the
use of the term “port state jurisdiction” in the heading and text of article 218 of
2
The Convention has achieved near-universal acceptance with 162 states parties. The United
States, while not having ratified the Convention, accepts the majority of its provisions as binding
under customary international law: see American Law Institute, Restatement of the Law Third: The
Foreign Relations Law of the United States (vol 2, 1987), 3–9; Coulson, “Law of the Sea: The
Convention Enters into Force” (1995), 458–460; United States v Royal Caribbean Cruises Ltd
11 F Supp 2d 1358 (1998) (DC South Florida), 1372.
3
Ringbom, “The Changing Role of Flag, Port and Coastal States under International Law” (2009), 92.
4
See Chap. 3, Sect. 3.1.1.
5
The preamble to UNCLOS notes that “matters not regulated by this Convention continue to be
governed by the rules and principles of general international law”.
6
See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 94; Anderson,
“Port States and Environmental Protection” (1999), 342; Churchill and Lowe, The Law of the Sea
(1999), 60–61; Johnson, Coastal State Regulation of International Shipping (2004), 35 and 46.
1.1 Why “Port State Jurisdiction”? 3
UNCLOS. The first use of this precise phrase appears to have arisen from the
discussions of the British Branch Committee on the Law of the Sea, at the 1974
conference of the International Law Association.7 The Committee’s discussions
were limited to the issue of effective enforcement following pollutant discharges
from vessels, and formed the basis of what is now article 218. This article, which is
not of central importance to this work, provides for an apparently unique form of
enforcement jurisdiction in situations where a vessel has entered a port after causing
a pollutant discharge on the high seas or in another state’s maritime zones.8
As a result of this genesis a number of authors have discussed “port state
jurisdiction” as referring only to more recent developments under international
agreements, principally article 218 of UNCLOS.9 For example, Hakapää states
that port state jurisdiction in its “proper sense” refers to article 218 and any other
port-based enforcement arising from activities taking place outside the state’s
coastal jurisdiction. In his view for instance any regulation of shipping safety
standards in port should be described as an act of coastal state jurisdiction more
generally.10
Such a narrow interpretation of the term is not adopted here. Given the important
legal differences between the exercise of a state’s jurisdiction over foreign vessels
visiting its ports, as opposed to those passing through its maritime zones, it is far
more desirable to adopt the label to describe this broader concept which, unlike the
authority extended under article 218, is relied upon on a daily basis all around the
world.11 Accordingly, this author follows the approach of the majority of interna-
tional law scholars, appropriating the relatively new label of “port state jurisdic-
tion” for discussion of the far older ideas underlying the extent of a state’s power
over vessels visiting its ports.12 Even if the specific phrase “port state jurisdiction”
was not employed until the mid twentieth century, the idea of “the right of a state to
7
British Branch Committee on the Law of the Sea, “The Concept of Port State Jurisdiction”
(1976). For the background to this report see Anderson, “Port States and Environmental Protec-
tion” (1999).
8
See McDorman, “Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea
Convention” (1997); Bang, “Port State Jurisdiction and Article 218 of the UN Convention on the
Law of Sea” (2009).
9
See for examples Meese, “When Jurisdictional Interests Collide: International, Domestic, and
State Efforts to Prevent Vessel Source Oil Pollution” (1982), 86; Bodansky, “Protecting the
Marine Environment from Vessel-Source Pollution: UNCLOS III and Beyond” (1991), 759;
Keselj, “Port State Jurisdiction in Respect of Pollution from Ships: The 1982 United Nations
Convention on the Law of the Sea and the Memoranda of Understanding” (1999), 127–131;
Gavouneli, Functional Jurisdiction in the Law of the Sea (2007), 44–49.
10
Hakapää, Marine Pollution in International Law: Material Obligations and Jurisdiction (1981),
172–173.
11
Despite surveying numerous jurisdictions, a recent study turned up no instances of a state basing
a prosecution on article 218 of UNCLOS: Bang, “Port State Jurisdiction and Article 218 of the UN
Convention on the Law of Sea” (2009).
12
See in particular Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998),
93–95; Molenaar “Port State Jurisdiction” (2010); see also Ringbom, The EU Maritime Safety
4 1 Introduction
exercise jurisdictional powers over vessels entering its ports and to deny such
access”13 has certainly been the subject of legal discussion from a much earlier
time.14
1.2 An Unlikely Trio
The primary aims of this work are to provide further evidence for the growing use
and importance of port state jurisdiction as a means of regulating international
merchant shipping, and to assess the legal limitations of the concept. As a result the
chapters which follow focus on situations where states have set shipping-related
standards that go beyond the international norm, and in relation to matters that have
until now been left to the supervision of flag states.
States operating ports have certain long-established interests that are commonly
the subject of regulations applicable to visiting ships.15 For example, any operator
of a merchant vessel would expect to be confronted with local regulations
governing matters such as the health and security of the port, as well as local
revenue and customs laws. In addition, the days in which responsible states simply
ignored the environmental and safety standards of visiting foreign vessels are long
gone. The term “port state” is most often associated with the now widespread
enforcement practice known as “port state control”.16 Organised on a regional
basis, this involves the in-port inspection of vessels for compliance with interna-
tionally agreed standards, notably the International Convention for the Safety of
Life at Sea (SOLAS)17 and the International Convention on the Prevention of
Pollution from Ships (MARPOL).18
Such convention-based standards, administered by either the International Mar-
itime Organization (IMO) or the International Labour Organization (ILO), are
essentially an exercise in harmonising international maritime law. The intention
Policy and International Law (2008), ch 5; Ringbom, “Global Problem – Regional Solution?
International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011).
13
Convention on the Law of the Sea and the Memoranda of Understanding” (1999), 128.
14
See for example Charteris, “The Legal Position of Merchantmen in Foreign Ports and National
Waters” (1920–1921).
15
For purposes of this discussion it is not necessary to adopt a technical definition of “regulation”.
The term is used here in its broad politico-economic sense, described by some scholars as a
“sustained and focused control exercised by a public agency over activities that are valued by the
community”: Ogus, Regulation: Legal Form and Economic Theory (1994), 1, quoting Selznick;
see also Baldwin and Cave, Understanding Regulation: Theory, Strategy, and Practice (1999),
1–2.
16
17
International Convention for the Safety of Life at Sea (1 November 1974).
18
International Convention on the Prevention of Pollution from Ships 1973 as modified by the
Protocol of 1978 relating thereto (2 November 1973, 17 February 1978).
1.2 An Unlikely Trio 5
is that states will use these rules in their domestic legislation, instead of developing
their own parallel standards, thus allowing vessels to travel throughout the world in
compliance with a single set of regulations. This work does not focus on interna-
tionally agreed rules of this kind.19 Instead the analysis focuses on situations where
port states use their jurisdiction over visiting foreign vessels to introduce
regulations that are more stringent than existing international agreements, or relate
to matters that are not yet the subject of international agreements. This may involve
unilateral action on the part of an individual port state, or action by a group of states,
possibly on a regional basis.
While they appear an unlikely trio at first, the three pieces of legislation that
form the basis of the discussion in this book all share these characteristics. All three
apply to foreign vessels, and all three base this application (through varying
methods) on port state jurisdiction. Furthermore, it is argued that none of the
three instruments could have been applied to vessels in transit through a state’s
maritime zones as a matter of coastal state jurisdiction more generally in compli-
ance with UNCLOS.
In terms of their subject-matter they are largely unrelated; a United States
security-based measure, an EU insurance Directive and Australian employment
law will rarely be discussed in the same context. Nonetheless, together they
illustrate the ongoing expansion of port state jurisdiction as a regulatory approach,
as each example concerns an aspect of shipping that has traditionally been left as a
matter for flag state regulation. The United States’ Cruise Vessel Security and
Safety Act 2010 addresses aspects of passenger safety20 and security aboard cruise
ships. The EU’s Directive of 2009 relates to visiting vessels’ third party liability
insurance,21 and the Fair Work Act 2009, Australia’s principal employment legis-
lation, applies to the crew of specified categories of foreign vessel.
Taken as a group they provide an ideal basis from which to draw a discussion of
the most important legal issues involved in the regulation of international merchant
shipping by port states. Each piece of legislation is assessed in terms of its
compliance with international law, as represented by UNCLOS and other relevant
sources.22 Furthermore, as examples of state practice in the context of a state’s
19
In addition the work makes only limited reference to the port state enforcement measures
adopted by the international community in relation to fisheries law, see for example Agreement
on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated
Fishing (22 November 2009).
20
The majority of the safety issues addressed by this Act differ from those usually associated with
shipping regulation.
21
Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for maritime claims.
22
Although world trade law represents a possible avenue for maritime states wishing to reign in
the actions of ambitious port states, an assessment of the legislation’s consistency with the
requirements of instruments such as the General Agreement on Tariffs and Trade and the General
Agreement on Trade in Services is beyond the scope of this work. For examples of authors
analysing the potential impact such instruments may have on shipping legislation see for example
de la Fayette, “Access to Ports in International Law” (1996), 19–21; McDorman, “Regional Port
State Control Agreements: Some Issues of International Law” (2000), 219–222; Serdy, “See You
6 1 Introduction
jurisdiction over visiting foreign vessels they help illustrate the ongoing evolution
of customary international law in this area. Finally, all three pieces of legislation
merit examination as examples of domestic legal instruments in terms of their
purpose, scope, and enforcement process. By analysing such regulations it is
possible to identify the potential difficulties for legislators, as well as the maritime
operators affected, in extending the use of port state jurisdiction.
Such issues also arise in the context of vessel safety and environmental matters,
which are undoubtedly more central to the contemporary discussion of international
shipping regulation. Indeed environmental standards relating to fuel quality and
emissions are likely to be among the most controversial issues for the transport
sector in the coming decades.23 However, this work addresses a perceived gap in
the existing literature concerning legislation that falls outside of these two subjects,
and explores recent developments in areas that are not commonly associated with
regulation by port states. The legal and policy issues discussed nonetheless remain
relevant to regulatory efforts in the vessel safety and environmental context.
Ultimately it is hoped that this work will contribute to the ongoing development
of port state jurisdiction as a legal concept and regulatory approach. It is an area that
this author believes can only grow in importance and, while it provides significant
opportunities for regulators, shipping interests should keep a close eye on these
developments if they value the traditional strength of flag state jurisdiction.
in Port: Australia and New Zealand as Third Parties in the Dispute between Chile and the European
Community over Chile’s Denial of Port Access to Spanish Vessels Fishing for Swordfish on the
High Seas” (2002); Molenaar, Oude Elferink and Prevost, Study on the Labour Market and
Employment Conditions in Intra-Community Regular Maritime Transport Services Carried Out
by Ships under Member States’ or Third Countries’ Flags: Aspects of International Law (2008),
52 and following; Ringbom, “Global Problem – Regional Solution? International Law Reflections
on an EU CO2 Emissions Trading Scheme for Ships” (2011), 632–637.
23
See for example Ringbom, “Global Problem – Regional Solution? International Law Reflections
on an EU CO2 Emissions Trading Scheme for Ships” (2011).
Chapter 2
Background to Port State Jurisdiction
This chapter sets out the international law background to port state jurisdiction,1
demonstrating the nature and advantages of this concept when compared with other
potential approaches to the regulation of international shipping.
2.1 The Concept of Jurisdiction
In public international law terms jurisdiction is an aspect of state sovereignty,2

involving the “power of a sovereign to affect the rights of persons, whether by
legislation, by executive decree, or by the judgment of a court”.3 The concept of
port state jurisdiction invokes this interpretation of jurisdiction, involving the
assignment and delimitation of national sovereign powers, as opposed to a state’s
domestic rules of jurisdiction as they apply to disputes before its courts.4 For this
reason the focus here is not on which of a state’s courts should exercise jurisdiction
1
For similar overviews see Hakapää, Marine Pollution in International Law: Material Obligations
and Jurisdiction (1981), chs 6–8; Kasoulides, Port State Control and Jurisdiction: Evolution of the
Port State Regime (1993), ch 1; Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution
(1998), chs 4 and 6; Özçayir, Port State Control (2004), ch 3; Ringbom, The EU Maritime Safety
Policy and International Law (2008), ch 5; Molenaar, “Port State Jurisdiction” (2010).
2
The terms “sovereignty” and “jurisdiction” are open to many different interpretations and uses
within international law. At the broadest level, “sovereignty” is generally given as a description for
the legal personality of statehood, and the full complement of rights which accompany it, while
“jurisdiction” is used to refer to particular rights within that complement: see Lauterpacht,
International Law: A Treatise by L Oppenheim (vol 1, 1955), para 123; Wilson, Elements of
International Law by Henry Wheaton: The Literal Reproduction of the Edition of 1866 by Richard
Henry Dana Jr (1933), paras 20 and 33; Brownlie, Principles of Public International Law (2003),
106 and 289.
3
Beale, “The Jurisdiction of a Sovereign State” (1923), 241; see also Brownlie, Principles of
Public International Law (2003), 297; Lowe, “Jurisdiction” (2006).
4
Mann, “The Doctrine of Jurisdiction in International Law” (1964), 1.

8 2 Background to Port State Jurisdiction
over a shipboard tort, for example, but rather on the extent of a state’s ability to
dictate who can do what and where.5
Jurisdiction in this context is commonly divided into two separate functions for the
purposes of discussion, namely “the power to make decisions or rules (the prescrip-
tive or legislative jurisdiction)” and “the power to take executive action in pursuance
of or consequent on the making of decisions or rules (the enforcement or prerogative
jurisdiction)”.6 The discussion in this book deals primarily with prescriptive jurisdic-
tion. Where port state jurisdiction is concerned, the intention is to have any necessary
enforcement action take place in port, and thus within the state’s territory.7
2.1.1 Territorial Jurisdiction
There is no doubt as to the power of a state to exercise both prescriptive and

enforcement jurisdiction in the geographical area over which it enjoys sovereignty,
enabling it to adopt laws and pursue policies as it sees fit in order to govern its
territory.8 As the United States Supreme Court expressed it in 18129:
The jurisdiction of a nation within its own territory is necessarily exclusive and absolute. It
is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving
validity from an external source, would imply a diminution of its sovereignty to the extent
of the restriction, and an investment of that sovereignty to the same extent in that power
which could impose such restriction.
As a general rule, foreign nationals entering another state become subject to its
territorial jurisdiction and must therefore comply with the state’s laws during their
stay.10 It is this application of domestic laws to foreign nationals in the shipping
context that gives rise to the issues relevant to the discussion of port state jurisdiction.
5
See Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 135.
6
Brownlie, Principles of Public International Law (2003), 297.
7
See Lowe, “Jurisdiction” (2006), 356.
8
See Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), paras 124 and
169–170. The term “territorial sovereignty” is sometimes used to describe a state’s supreme
authority over the persons and things within the geographical land and sea area it controls: see
Brownlie, Principles of Public International Law (2003), ch 6.
9
The Schooner Exchange v McFaddon 11 US 116 (1812) (SC), 136. Limitations of the kind
mentioned include those arising from international agreements and customary international law,
see Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), paras 126–127;
10
The Schooner Exchange 11 US 116 (1812) (SC), 144; Beale, “The Jurisdiction of a Sovereign
State” (1923), 244; Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), para
124; Lowe, “Jurisdiction” (2006), 342. A state’s territorial jurisdiction over foreign nationals is not
absolute. Over time states have granted limited exceptions, most of which are not relevant to this
discussion, such as diplomatic immunities and minimum standards of treatment for aliens. In
addition there is the more complex and wide-ranging question of the role human rights will
2.1 The Concept of Jurisdiction 9
This submission to local law includes both the criminal and civil jurisdiction of
the state. In the context of port state jurisdiction it is the criminal aspect that is most
relevant, although the level of culpability is usually of a regulatory nature relying
on strict liability rather than a “guilty mind”.11 The most straightforward examples
arise where a state prescribes a crime, and this crime is committed by a foreign
national within that state’s territory. However, in cases where an offence is
commenced outside the state’s territory it may still be able to claim jurisdiction
on the basis that a constituent element of the offence was committed, or the effects
of the offence were felt, within its territory. This approach, which stems from
territorial jurisdiction, is variously described as the “effects” approach or the
“objective territorial principle”,12 and is often associated with the decision of the
Permanent Court of International Justice in The Lotus.13
Territorial jurisdiction is the most important basis of jurisdiction for the purposes
of this work. In addition to the strong legal position of a state relying exclusively on
territorial jurisdiction, activities taking place within a state’s territory are most
easily legislated for and controlled by the state’s agents. As discussed below, these
legal and practical advantages are combined in the exercise of port state
jurisdiction.
2.1.2 Jurisdiction Over Nationals
Another widely-exercised basis of jurisdiction is that of nationality,14 which states

may use to enact laws that follow their nationals15 across international borders,
applying to their actions regardless of their location. The challenge for a state in this
context is enforcement. In some cases it is possible to delay enforcement until the
offending party returns to the state’s territory,16 or to take action in an area outside
of any state’s territorial jurisdiction, for example, where a state’s navy takes
enforcement action on the high seas against a merchant vessel operating under
continue to play in this context: see Brownlie, Principles of Public International Law (2003), chs
17, 24 and 25.
11
Ogus, Regulation: Legal Form and Economic Theory (1994), 81–82.
12
Akehurst, “Jurisdiction in International Law” (1972–1973), 152–153; Brownlie, Principles of
Public International Law (2003), 299; Lowe, “Jurisdiction” (2006), 343–345.
13
The Lotus (1927) 10 PCIJ Series A 4 (PCIJ); see von Bogdandy and Rau, “The Lotus” (2006).
14
The Zollverein (1856) Swab 96; 166 ER 1038 (HC Ad), 1040; Beale, “The Jurisdiction of a
Sovereign State” (1923), 252–253; Lauterpacht, International Law: A Treatise by L Oppenheim
(vol 1, 1955), para 124; Akehurst, “Jurisdiction in International Law” (1972–1973), 156–157;
Brownlie, Principles of Public International Law (2003), 301–302.
15
A company or vessel to which nationality has been attributed would equally qualify at this level
of generalisation: see Brownlie, Principles of Public International Law (2003), ch 20.
16
Advisory Committee of the Research in International Law, “Jurisdiction with Respect to Crime”
(1935), 519.
that state’s flag.17 What is not acceptable is for one state to attempt enforcement
action in the territory of another, unless by agreement with the state concerned.18
In the context of the regulation of international shipping by port states, jurisdic-
tion based on nationality is not of particular significance, although the attribution of
nationality to vessels is relevant and discussed below.
2.1.3 Extraterritorial Jurisdiction
In addition to the extraterritorial application of a state’s laws to its own nationals,

there are three further bases of jurisdiction that may justify a similar course of action
in relation to foreign nationals.19 First, the protective or security principle. This
concerns offences against states, rather than their citizens. It is principally aimed at
situations whereby a foreign national, located in a foreign state, does something to
threaten the security or territorial integrity of the prosecuting state.20 Second, the
principle of universal jurisdiction. This is very limited in its scope, essentially
allowing for the enforcement of crimes that are globally condemned, such as piracy.21
Third, and most controversially, the passive personality principle. This essentially
asserts that a foreign national can be punished for actions that took place outside the
enforcing state which were harmful to one or more of that state’s citizens.22 All three
of the principles present the same problems of enforcement for the would-be
prosecuting state as those discussed in relation to jurisdiction based on nationality.
Given their narrow scope, these bases of jurisdiction are not of particular
relevance here, but are mentioned for the sake of completeness, demonstrating
the limited scope of extraterritorial jurisdiction under international law.23
17
UNCLOS, art 92(1).
18
The Apollon 22 US 362 (1824) (SC), 371; The Lotus (1927) 10 PCIJ Series A 4 (PCIJ), 18;
Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), paras 125 and 128;
19
Certain treaties also extend extraterritorial jurisdiction over specified crimes of common inter-
national concern, such as violence aboard aircraft: see Lowe, “Jurisdiction” (2006), 349–351.
20
See Advisory Committee of the Research in International Law, “Jurisdiction with Respect to
Crime” (1935), arts 7 and 8; Lauterpacht, International Law: A Treatise by L Oppenheim (vol
1, 1955), para 147; Akehurst, “Jurisdiction in International Law” (1972–1973), 157–159;
Brownlie, Principles of Public International Law (2003), 302–303.
21
(1935), art 10; Akehurst, “Jurisdiction in International Law” (1972–1973), 160 and following;
22
Akehurst, “Jurisdiction in International Law” (1972–1973), 163–165; Brownlie Principles of
Public International Law (2003), 302.
23
See Advisory Committee of the Research in International Law, “Jurisdiction with Respect to
Crime” (1935), 445. The issue of extraterritorial jurisdiction is dealt with in more detail in Chap. 4,
Sect. 4.4.
2.1.4 General Limits on States’ Prescriptive Jurisdiction
In one sense a state has unlimited prescriptive jurisdiction, but at the same time the
international community may identify certain domestic enactments as
contraventions of international law, and refuse to recognise their validity.24 While
disputes of this kind tend to arise following attempts to enforce such a law in a
manner that impacts upon the interests of other states,25 international law does
provide a few guidelines on the accepted boundaries of prescriptive jurisdiction.
These are the principle of non-discrimination, the doctrine of abuse of rights, and
the principles of good faith and proportionality. Fortunately, the discussion of these
matters in the maritime context is made simpler by the inclusion of the relevant
principles within the text of UNCLOS.26
2.1.4.1 Non-discrimination
While the other guidelines discussed in this section are vague and rarely invoked,
the principle of non-discrimination has considerable force in the maritime sector,
due to its incorporation in both UNCLOS27 and international trade law.28 Its
application in this context prevents states from imposing laws directed at all ships
flying a particular flag, as opposed to laws addressing the safety or environmental
standards of individual vessels (or classes of vessel).
2.1.4.2 Good Faith and Abuse of Rights
Article 300 of UNCLOS provides that:

States Parties shall fulfil in good faith the obligations assumed under this Convention and
shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a
manner which would not constitute an abuse of right.
This refers to two well-established, though somewhat nebulous, aspects of

international law.29 Good faith as a general principle of international law signals
that “literal interpretations and applications of legal instruments must not be
allowed to defeat the evident intentions of those who made them”, and reminds
24
See Mann, “The Doctrine of Jurisdiction in International Law” (1964), 1–15.
25
Brownlie, Principles of Public International Law (2003), 291; see also Beale, “The Jurisdiction
of a Sovereign State” (1923), 242–245.
26
See Ringbom, The EU Maritime Safety Policy and International Law (2008), 223–230.
27
See UNCLOS, arts 24(1)(b), 25(3), 26(2), 42(2), 52(2), 119(3), 227, and 234. An exception may
be found in art 228(1).
28
See for example General Agreement on Tariffs and Trade (30 October 1947), arts I and V.
29
See Brownlie, Principles of Public International Law (2003), 17–18 and 429–430; Paul, “The
Abuse of Rights and Bona Fides in International Law” (1977).
states of their obligation to comply with the international obligations they have
assumed.30 However, it is difficult to view good faith as a concrete limitation on a
state’s prescriptive jurisdiction, absent the application of any other principle or
doctrine.
By comparison, the doctrine of abuse of rights suggests a more readily discern-
ible and enforceable check on state power. However, there is still little guidance
available on the practical application of this concept.31 Drawing on the work of
numerous scholars, Ringbom suggests that in the context of port state jurisdiction
abuse of rights will be relevant where a state: first, exercises a right in an arbitrary or
unreasonable manner; second, this exercise causes injury to a second state or its
nationals; and third, that the legitimate interests of the state exercising the right do
not justify its actions.32 He notes that port states are unlikely to have their
regulations characterised as abusive, even if they are relatively intrusive, “as long
as there is some link between the requirements and the concerns they are intended
to address”.33
2.1.4.3 Proportionality
Proportionality, in the sense that the measures taken to achieve an objective should
be appropriate to the objective sought and not exceed what is necessary,34 is a
general principle of law applicable at both the domestic and international level.35
The precise definition and application of the principle differs across the specific
areas of international law in which it is most frequently encountered, notably the
law of armed conflict, human rights law, maritime boundary delimitation, EU law,
and world trade law.36
However, no specialised definition or approach to proportionality applies to
maritime regulations of the kind discussed here. Proportionality is not expressly
mentioned in UNCLOS as a general principle for states to adhere to, although it
does feature to varying degrees in both the prescriptive37 and enforcement
30
Lowe, International Law (2007), 117–118; see also Vienna Convention on the Law of Treaties
(23 May 1969), arts 26 and 31(1).
31
Shearer, “Problems of Jurisdiction and Law Enforcement against Delinquent Vessels” (1986),
343.
32
Ringbom, The EU Maritime Safety Policy and International Law (2008), 225–228.
33
Ringbom, The EU Maritime Safety Policy and International Law (2008), 227.
34
Crawford, “Proportionality” (2011), paras 1–2.
35
Mitchell, “Proportionality and Remedies in WTO Disputes” (2006), 1008; Franck, “On
Proportionality of Countermeasures in International Law” (2008), 716; Sweet and Mathews,
“Proportionality Balancing and Global Constitutionalism” (2008), 159–162.
36
See generally Crawford, “Proportionality” (2011).
37
See for examples UNCLOS, arts 60(4) and 66(2).
context.38 In the context of port state jurisdiction arguments based on

proportionality are most likely to have impact where enforcement measures are
concerned,39 but the concept is nonetheless an important tool for analysing, at a
general level, the relationship between domestic legislation and international law.
2.1.4.4 Key Points on Jurisdiction
For the purposes of this work the essential points raised here are that territorial
jurisdiction is universally recognised, that foreign nationals entering a state’s
territory are subject to that territorial jurisdiction, and that international law places
very few limits on a state’s exercise of this jurisdiction.40 The other bases of
jurisdiction do not assist a state intending to enact and enforce regulations applica-
ble to foreign merchant vessels. Jurisdiction based upon nationality will only apply
to vessels operating under that state’s own flag. Jurisdiction based on the protective,
universal, or passive personality principles will either be too limited in scope, too
controversial under international law, or give rise to too many problems of enforce-
ment for the measure to be useful in the day-to-day regulation of shipping.41
Not every piece of domestic legislation allows for easy categorisation in terms of
the bases of jurisdiction outlined above,42 and furthermore different bases of
jurisdiction frequently overlap and collide. International law provides no clear
and comprehensive framework for dealing with all such situations of concurrent
jurisdiction, where two different states can arguably claim authority over the same
persons, objects or events, and may never do so.43 This has led some scholars to
argue that there should be only one basis of jurisdiction, closer to that relied upon in
private international law. This would focus on establishing a “substantial connec-
tion” between the subject-matter concerned and the state attempting to exercise its
jurisdiction.44 This author also recommends this concept as a means of clarifying,
38
See for examples UNCLOS, arts 221(1) and 232. See Shearer, “Problems of Jurisdiction and
Law Enforcement against Delinquent Vessels” (1986), 341–342.
39
See Committee on Coastal State Jurisdiction relating to Marine Pollution, “Final Report”
(2000), 456; Ringbom, The EU Maritime Safety Policy and International Law (2008), 228–229.
40
In the absence of any other guidance from international law sources, Ringbom suggests
packaging the international law limitations discussed above into a form of “reasonableness” test
for states’ legislation: Ringbom, The EU Maritime Safety Policy and International Law (2008),
p 229. This author is reluctant to adopt that terminology, as the threshold for contravening such
broad principles appears higher than the reasonableness criterion familiar to a common law
scholar, but the approach itself cannot be faulted.
41
See for example The Zollverein (1856) Swab 96; 166 ER 1038 (HC Ad), 1040.
42
43
Mann, “The Doctrine of Jurisdiction in International Law” (1964), 10; Akehurst, “Jurisdiction in
International Law” (1972–1973), 168. Several possible approaches to this issue are discussed in
International Bar Association Report of the Task Force on Extraterritorial Jurisdiction (2008), 21–31.
44
See Mann, “The Doctrine of Jurisdiction in International Law” (1964), 49; Brownlie, Principles
of Public International Law (2003), 305.
and potentially improving upon, the law’s approach to concurrent flag and port state
jurisdiction.45 After all, most of the debate surrounding the regulation of interna-
tional shipping through port state jurisdiction is essentially a question of which
competing jurisdiction should prevail in which circumstances.
2.2 Jurisdiction Over Vessels Under UNCLOS
The rights a state enjoys over the sea area adjacent to its coastline are now governed
by UNCLOS, which contains detailed provisions on the extent of states’ jurisdic-
tion across a number of different maritime zones. While the Convention confirms
states’ sovereignty over their internal waters and territorial seas,46 it also imposes a
number of limitations that distinguish jurisdiction over states’ maritime zones from
jurisdiction over their land territory.
2.2.1 Flag State Jurisdiction
UNCLOS also contains a number of provisions on the exercise of flag state

jurisdiction. The concept of a vessel being registered with its own “nationality”,
represented by the flag it flew, only developed into its current form in the late
eighteenth century. Prior to this vessels were seen as belonging to the subject(s) of a
particular state, rather than connected with the state itself.47 For a time the jurisdic-
tion exercised over a vessel was portrayed in a similar way to jurisdiction over a
state’s territory, on the basis that the flag state’s law applies to events on board even
though the vessel may move around the world, far from that state’s legislature and
courts. This led to descriptions to the effect that vessels were a “floating portion of
the flag state’s territory”48 and similar metaphors in an attempt to convey their
unique legal status (descriptions which have long since fallen out of favour with
jurists).49
More recently the act of registering a vessel within a particular state has been
equated to conferring a form of nationality upon that vessel for jurisdictional
45
See Chap. 6, Sect. 6.7; Chap. 7, Sect. 4.4.4.
46
UNCLOS, art 2.
47
König, “Flag of Ships” (2009), paras 2–3.
48
See for example R v Keyn (1876) 2 ExCh Div 63 (Court for Crown Cases Reserved), 113 per
Grove J; The Lotus (1927) 10 PCIJ Series A 4 (PCIJ), 25.
49
See Chung Chi Cheung v R [1939] AC 160 (PC), 174.
2.2 Jurisdiction Over Vessels Under UNCLOS 15
purposes,50 although the concept is distinct from that applying to individuals.51

Whichever way this matter is framed at the theoretical level, the priority in practice
is to ensure that on the high seas, which is comprised of those areas over which no
state has sovereignty,52 there is still a state with authority over the vessel.53
UNCLOS, following centuries of tradition, assigns this role to the flag state.54 In
other maritime zones the flag state’s jurisdiction will exist concurrently with that of
coastal states.
Under UNCLOS the flag state has primary responsibility for its vessels and must
exercise control over their “administrative, technical and social matters”.55 Accord-
ingly, it is the flag state that is expected—in principle—to set vessel standards and
enforce breaches of those standards in the first instance. Adjusting to the reality
lurking behind this principle, namely the lack of interest shown by certain flag states
towards the vessels on their registers, has been the impetus behind many significant
developments in international maritime law, as discussed in the following chapter.
2.2.2 Coastal State Jurisdiction
While a flag state has primary responsibility for its vessels, this does not render these
vessels immune from the attentions of coastal states. Each coastal state has authority
over a series of maritime zones defined by UNCLOS.56 The principal zones are the
internal waters, territorial sea, and exclusive economic zone (EEZ), although there is
also a contiguous zone and several special cases pertaining to certain geographical
situations. Where port state jurisdiction is concerned the most important distinction is
between those maritime zones where a state enjoys territorial jurisdiction (internal
waters and the territorial sea), and those where it may exercise only a more limited
form of jurisdiction (such as the EEZ and contiguous zone).
50
Cunard Steamship Co Ltd v Mellon 262 US 100 (1923) (SC), 123; Brownlie, Principles of
Public International Law (2003), 407 and 410–412; Lowe, “Jurisdiction” (2006), 345; for a
detailed analysis of this point see Molenaar, Oude Elferink and Prevost, Study on the Labour
Market and Employment Conditions in Intra-Community Regular Maritime Transport Services
Carried Out by Ships under Member States’ or Third Countries’ Flags: Aspects of International
Law (2008), 16–24.
51
König, “Flag of Ships” (2009), paras 16–17; see also Smith, State Responsibility and the Marine
Environment (1988), 150–152 distinguishing between the vessel as a locus of activity, and the
vessel as a moveable chattel.
52
UNCLOS, art 86.
53
Brownlie, Principles of Public International Law (2003), 410; Lowe, International Law (2007),
175.
54
UNCLOS, art 92(1).
55
UNCLOS, art 94(1). See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution
(1998), 95–100.
56
For the evolution of this approach see Oxman, “The Territorial Temptation: A Siren Song at
Sea” (2006).
2.2.2.1 Internal Waters
The determination of a state’s internal waters is by reference to the baselines

mechanism used by UNCLOS to define the territorial sea: “waters on the landward
side of the baseline of the territorial sea form part of the internal waters of the
State”.57 These areas tend to include harbours, fjords, estuaries and similar geo-
graphical formations. It is a long-established principle, now enshrined in
UNCLOS,58 that a state may exercise sovereignty over its internal waters in
essentially the same manner that it does in relation to its land territory.59 This
means that in principle a state may apply its laws to any foreign vessel entering this
area, as well as to those on board. However, given the geographical attributes of
internal waters, it is rare for a vessel to have any need to enter this zone when
travelling between international destinations, unless those internal waters host port
facilities.60
2.2.2.2 The Territorial Sea
A state’s territorial sea extends 12 nautical miles out from its coastline, as measured
by way of the baselines mechanism provided for in UNCLOS.61 Compared with the
extent of the world’s oceans this is not a great distance, but it is still significant for
traders given the earth’s geography. By way of illustration, the English Channel at
its narrowest point is just over 18 nautical miles wide. Vessels travelling around the
globe often need to pass through foreign states’ territorial seas to reach their
destination in an expeditious manner.
In addition to its geographical significance, the coastal state also has sovereignty
over its territorial sea, as stated in article 2 of UNCLOS. However, article 2(3) goes
on to note that “The sovereignty over the territorial sea is exercised subject to this
Convention and to other rules of international law”. In the context of international
shipping regulation and port state jurisdiction, this phrase takes on crucial impor-
tance due to the principle of freedom of navigation, and a vessel’s concomitant right
of innocent passage, which Beale (writing in the 1920s) described as the “chief
limitation of a sovereign’s jurisdiction over his own territory”.62
57
UNCLOS, art 8(1).
58
UNCLOS, art 2(1).
59
Beale, “The Jurisdiction of a Sovereign State” (1923), 260; McDougal and Burke, The Public
Order of the Oceans: A Contemporary International Law of the Sea (1962), 92–93; Degan,
“Internal Waters” (1986), 3; Churchill and Lowe, The Law of the Sea (1999), 60–61.
60
See McDougal and Burke, The Public Order of the Oceans: A Contemporary International Law
of the Sea (1962), 89–92.
61
UNCLOS, art 3. For the history of the concept of the territorial sea see generally O’Connell,
“The Juridical Nature of the Territorial Sea” (1971); Churchill and Lowe, The Law of the Sea
(1999), ch 4.
62
Beale, “The Jurisdiction of a Sovereign State” (1923), 259.
The innocent passage provisions of UNCLOS essentially allow foreign vessels

to pass without interference through a coastal state’s territorial sea provided their
passage remains “innocent”.63 This includes situations in which a vessel is pro-
ceeding to or from internal waters, or proceeding to or from a call at a roadstead or
port facility outside internal waters.64 Vessels may even stop for a period of time:
only those vessels that interrupt their passage through the territorial sea in a manner
that is not “incidental to ordinary navigation” will lose the protection of innocent
passage.65
Where a vessel is engaged in innocent passage the matters that a coastal state
may regulate are limited by article 21(1) of UNCLOS:
The coastal State may adopt laws and regulations, in conformity with the provisions of this
Convention and other rules of international law, relating to innocent passage through the
territorial sea, in respect of all or any of the following:
(a) the safety of navigation and the regulation of maritime traffic;
(b) the protection of navigational aids and facilities and other facilities or installations;
(c) the protection of cables and pipelines;
(d) the conservation of the living resources of the sea;
(e) the prevention of infringement of the fisheries laws and regulations of the coastal State;
(f) the preservation of the environment of the coastal State and the prevention, reduction
and control of pollution thereof;
(g) marine scientific research and hydrographic surveys;
(h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State.
However, any such regulations “shall not apply to the design, construction,
manning or equipment of foreign ships unless they are giving effect to generally
accepted international rules or standards”.66 This restriction over what are com-
monly referred to as “CDEM” standards reflects the fact that if all coastal states
were to implement unique domestic versions of this kind of standard, use of the
world’s waterways would quickly become subject to a “patchwork quilt” of
conflicting rules that go to the heart of a ship’s operations.67
63
See UNCLOS, Part II, Section 3. Activities that render passage non-innocent involve serious
transgressions such as weapons testing or causing wilful and serious pollution that are not likely to
occur in the course of ordinary international trade: see UNCLOS, art 19.
64
UNCLOS, art 18(1)(b). Although foreign vessels have no right of innocent passage in internal
waters, there is an exception in cases where the delineation of a state’s territorial sea has had the
effect of “enclosing as internal waters areas which had not previously been considered as such a
right of innocent passage as provided for in [UNCLOS] shall exist in those waters”: UNCLOS, art
8(2). Hakapää notes that this removes the only substantial factor differentiating internal waters
from the territorial sea in such cases: Hakapää, Marine Pollution in International Law: Material
Obligations and Jurisdiction (1981), 167.
65
This may include distress situations, see UNCLOS, art 18(2).
66
UNCLOS, art 21(2).
67
Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III
and Beyond” (1991), 727.
The obligations of coastal states in relation to vessels exercising the right of

innocent passage are further emphasised by article 24 of UNCLOS, which provides
that:
1. The coastal State shall not hamper the innocent passage of foreign ships through the
territorial sea except in accordance with this Convention. In particular, in the application
of this Convention or of any laws or regulations adopted in conformity with this
Convention, the coastal State shall not:
(a) impose requirements on foreign ships which have the practical effect of denying or
impairing the right of innocent passage; or
(b) discriminate in form or in fact against the ships of any State or against ships carrying
cargoes to, from or on behalf of any State.
The duty not to hamper innocent passage is also reinforced in relation to

environmental regulations under Part XII of UNCLOS,68 as well as articles
27 and 28 dealing with limits on the coastal state’s civil and criminal jurisdiction
over persons aboard vessels in the territorial sea.69
2.2.2.3 The Contiguous Zone
The contiguous zone is essentially an additional 12 nautical miles beyond the

territorial sea in which a state may still exercise jurisdiction to “prevent infringement
of its customs, fiscal, immigration or sanitary laws and regulations within its territory
or territorial sea” and “punish infringement of the above laws and regulations
committed within its territory or territorial sea”.70
2.2.2.4 The Exclusive Economic Zone
Coastal states have even more limited rights in relation to their EEZ of up to
200 nautical miles. Here their authority is limited to71:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing
the natural resources, whether living or non-living, of the waters superjacent to the
seabed and of the seabed and its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the production of energy
from the water, currents and winds;
68
See UNCLOS, art 211(4).
69
These provisions are of minor importance in the context of shipping regulation, where the focus
is more likely to be on the vessel itself rather than the criminal or tortious actions of those on board,
but these provisions do acknowledge the importance placed on freedom of navigation by the
international community: see Lee, “Jurisdiction over Foreign Merchant Ships in the Territorial
Sea: An Analysis of the Geneva Convention on the Law of the Sea (1961), 84 in relation to the
pre-UNCLOS versions of these provisions.
70
UNCLOS, art 33.
71
UNCLOS, art 56(1). See also art 211(5) where slightly more extensive powers are available in
limited environment-related circumstances.
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
Vessels are granted freedom of navigation within the EEZ,72 which is effectively
treated as part of the high seas for most purposes relating to navigation.73 However,
a vessel must still give due regard to the rights and duties of the coastal state and
comply with the coastal state’s laws.74 This balancing of rights enables a coastal
state to establish navigation safety zones around any drilling installations in its
EEZ, for example.75
2.2.2.5 International Straits
Some straits—narrow bodies of water joining two larger ones—are of great impor-
tance to international shipping, forming key passages along major trade routes.76
Straits that are “used for international navigation between one part of the high seas
or an [EEZ] and another part of the high seas or an [EEZ]” are governed by Part III
of UNCLOS,77 and vessels are given a special right of “transit passage” through
them.78 Essentially this forms an additional layer of free navigation rights in an area
that is otherwise part of at least one state’s territorial sea. For the purposes of this
discussion it is sufficient to note that a coastal state’s powers of regulation are even
more restricted in relation to transit passage under article 42 than they are in relation
to innocent passage under article 21.
2.2.2.6 Archipelagic Waters
By drawing baselines around the edge of their group of islands, archipelagic states
create an area referred to as archipelagic waters over which they have sovereignty.79
However, foreign vessels may exercise a right of innocent passage through archipe-
lagic waters in essentially the same manner as in the territorial sea.80
72
UNCLOS, art 58(1) and 87(1)(a).
73
UNCLOS, art 58(2) (referring to arts 88 to 115).
74
UNCLOS, art 58(3).
75
UNCLOS, art 60.
76
See generally Van Dyke, “Transit Passage Through International Straits” (2009).
77
UNCLOS, art 37.
78
UNCLOS, art 38.
79
UNCLOS, arts 46–49.
80
UNCLOS, art 52; see also UNCLOS arts 53 and 54 (referring to arts 39, 40, 42 and 44).
2.2.2.7 Waters Above the Continental Shelf
In situations where a coastal state’s continental shelf extends beyond the 200 nauti-
cal miles of the EEZ it may be able to claim additional rights to the natural
resources of the shelf.81 However, this does not affect the legal status of the
water and air column above this zone, and the coastal state must not exercise its
rights in a manner that would interfere with navigation or infringe on other rights
and freedoms provided for in UNCLOS.82
2.2.3 Summary
While the flag state has primary jurisdiction over its vessel, coastal states also have
opportunities to regulate that vessel, depending on the maritime zone in which the
vessel is located. The zone in which the coastal state has the most extensive ability
to exercise its prescriptive and enforcement jurisdiction is its internal waters. By
contrast the territorial sea, over which the state also enjoys sovereignty, provides
only limited opportunities for shipping regulation because of the right of innocent
passage. Coastal state jurisdiction in all other maritime zones is even more
restricted. This raises the practical question of why a foreign vessel would visit a
coastal state’s internal waters, or interrupt its passage in the territorial sea? With the
exception of transiting a canal, in ordinary day-to-day commerce this will be for the
purposes of visiting a port.
2.3 What Is a Port?
Ports come in many different forms,83 from huge international hubs like the port of
Hamburg, bristling with cranes, to Taharoa “harbour” in New Zealand which is
little more than a single buoy mooring used for the loading of iron sands.84 To
understand the use of port state jurisdiction it is necessary to explore the relation-
ship between these facilities and a state’s internal waters and territorial sea. It is the
combination of this natural and legal geography that gives port state jurisdiction its
full impact.
81
82
UNCLOS, art 78.
83
See Talley, Port Economics (2009), ch 1.
84
Navigation Safety Bylaw 2009 (Environment Waikato, New Zealand), sch 1.4.
2.3 What Is a Port? 21
2.3.1 Defining “Port”
Lloyd’s Dictionary of Shipping Terms defines “port” as a “harbour having facilities

for ships to moor and load or discharge”, with “harbour” being defined as “a natural
or artificial shelter for ships”.85 An earlier example from a set of charterparty
definitions is “an area within which ships are loaded with and/or discharged of
cargo and includes the usual places where ships wait for their turn or are ordered or
obliged to wait for their turn no matter what the distance from that area”.86
UNCLOS does not provide a single definition of “port”, although there are a
number of references to the term within the Convention.87 For example, article
11 provides for the use of ports when determining the extent of a state’s territorial
sea, whereby “the outermost permanent harbour works which form an integral part
of the harbour system are regarded as forming part of the coast”. Article 18(1)
(a) makes allowance for port facilities that are outside of internal waters, and article
129 mentions “port installations and equipment”. Another type of facility referred
to by UNCLOS, again in the context of determining the extent of a state’s territorial
sea, is “[r]oadsteads which are normally used for the loading, unloading and
anchoring of ships”. Roadsteads are defined as an “[e]xpanse of water situated off
a port where ships are able to anchor safely”,88 and are no different from ports for
the purpose of regulating shipping, as they are invariably included within the
boundaries of the territorial sea.89
A more technical definition of “port” than those given above is not required for
the purposes of this discussion.90 The importance of the term here is as a shorthand
method of referring to places where vessels are loaded and unloaded, and which
form a convenient point at which to exercise control over vessels which have
voluntarily stopped there for a visit.91 This would include roadsteads, mooring
buoys associated with cargo loading and other areas falling outside the classic
“wharves within a natural harbour” incarnation of a port. It also includes ports that
are positioned on rivers or lakes some distance inland, but are able to be frequented
by seagoing vessels, such as Rotterdam and Toronto.
85
Brodie, Dictionary of Shipping Terms (2003), 181 and 120.
86
Baltic and International Maritime Conference et al, “Charterparty Laytime Definitions 1980”
(1981), 424.
87
See Nordquist et al, United Nations Convention on the Law of the Sea 1982: A Commentary (vol
II, 1985), 122.
88
Brodie, Dictionary of Shipping Terms (2003), 195; see also Whiteman, Digest of International
Law (vol 4, 1965), 263–273.
89
UNCLOS, art 12.
90
Compare for example the definition of “maritime port” in Degan, “Internal Waters” (1986),
13–15.
91
Molenaar, “Port State Jurisdiction” (2010), para 1.
2.3.2 Ports and Territorial Jurisdiction
For the purposes of effectively exercising jurisdiction over vessels, ports must
also be within a state’s territorial jurisdiction. Historically this has not posed a
problem, as ports tend to be located in harbours and other geographical
formations favourable to the safe mooring of vessels,92 and were separated out
from the rest of the ocean many centuries ago as being under the authority of the
coastal state.93 The same areas are now associated with internal waters, as defined
by UNCLOS.
The territorial sea may also contain port facilities, from a simple jetty pointing
out to sea from a straight piece of coastline, to a complex port facility built to
service vessels with drafts too deep for regular harbours. The growing need for
specialised terminals dealing with bulk cargoes, and later container vessels, has
led to port facilities being built further out towards sea than was traditionally the
case.94 A vessel that stops at such a port will no longer be protected by the right
of innocent passage, and is therefore in the same legal position as a vessel within
a port in internal waters.95 For this reason it is misleading to represent port state
jurisdiction as being synonymous with “internal waters jurisdiction”.
This situation may be contrasted with a vessel stopping at an offshore terminal
(such as a drilling rig) in the EEZ, where the coastal state’s authority is more
limited,96 or even in the high seas.97 UNCLOS does not explicitly deal with the
coastal state’s jurisdiction in such circumstances, and legislation has been passed
in some states to deal with this issue.98 The most notable example is the United
States’ Deepwater Port Act 1974, which requires foreign vessels visiting such
ports to expressly consent to the United States’ jurisdiction,99 at which time the
United States considers them subject to its jurisdiction “as if in the territorial
sea”.100 As ports and terminals of this nature have a more ambiguous legal
position than those located in a state’s internal waters or territorial sea, and are
less central to international shipping, they are not the focus of this discussion.
92
Strohl, The International Law of Bays (1963), 48.
93
Strohl, The International Law of Bays (1963), 18 and 115.
94
Broeze, “Containerization and the Globalization of Liner Shipping” (1998), 402.
95
UNCLOS, art 18.
96
UNCLOS, arts 56(1)(b)(i) and 60.
97
See Lawrence, “Superports, Airports and Other Fixed Installations on the High Seas” (1975).
98
See O’Connell, The International Law of the Sea (1984), 842–846.
99
33 USC 1501–1524; see Graham, “The Regulation of Deepwater Ports” (1975).
100
Cummins, Digest of United States Practice in International Law 2005 (2007), 693–695.
2.3 What Is a Port? 23
2.3.3 The Practicalities of Ports
The earliest “ports” were simply open areas of beach or shore, on to which vessels
were dragged for loading and unloading, occasionally with the assistance of a
sledge and windlass. This approach was heavily dependent on the tides, suited
only smaller vessels, and made it difficult to keep goods dry.101 In the European
context the construction of quays, initially by the Roman Empire, but later
re-established from the eleventh century onwards, made loading and unloading
faster and easier.102 By maintaining good port facilities, communities realised they
could draw more ships and trade to their towns, and different ports specialised in
different cargoes and voyage types from an early time.103 Ports have performed a
central role in international commerce ever since.
Writing in the 1960s, McDougal and Burke made the following comments on the
practical importance of ports, as well as the reasons why territorial authorities have
cause to monitor them closely104:
Of these various types of areas commonly claimed as internal waters, ports are of the most
interest to the general community since it is through these complex installations that world
commerce and trade flows. The myriad facilities and functions associated with a port are the
indispensable bases upon which the entire international ocean transport system rests.
[. . .]
The normal use of a port area for the passage of goods and persons clearly has an impact
upon the territorial community. The constant movement of persons and the arrival and
departure of cargo may include also the entry and exit of undesirable goods and persons.
The mere ordinary operation of ships anchored in a harbor can affect the health and safety of
the local populace. Other events aboard ships in port may extend effects to other value
processes ashore or in other ships. The movement of vessels into and out of the port requires
care and supervision for maintenance of continued safety and efficiency. All these events and
others naturally invoke the interest of coastal authorities. In ports, as in other parts of the
territory, the maintenance of order, the protection of property, and safeguarding the well-being
and security of the inhabitants are the legitimate concern of local government and officials.
These remarks still ring true 50 years on.105 Ports have long been recognised as a
natural point of control due to the fact that they are needed by vessels to load and
unload goods and embark and disembark persons.106 These activities may be
monitored by the port state in the interests of its own health, security, revenue
and other concerns—but they also provide the opportunity to regulate the vessels
that are visiting the port. The convenient location of local infrastructure and state
officials works in both respects.
101
Unger, The Ship in the Medieval Economy 600–1600 (1980), 95.
102
103
Unger, The Ship in the Medieval Economy 600–1600 (1980), 109 and 239.
104
McDougal and Burke, The Public Order of the Oceans: A Contemporary International Law of
the Sea (1962), 89–91.
105
See Branch, Elements of Shipping (2007), ch 17; Talley, Port Economics (2009), chs 1 and 13.
106
This is what distinguishes the port from other parts of the state’s internal waters.
In legal terms, under UNCLOS, there is no difference in the level of control that
may be exercised over a foreign vessel in port as opposed to one anchored in an
isolated bay.107 But in practical terms the difference is enormous. Attempting to
inspect a vessel while it is still at sea (i.e., at anchor) requires a potentially risky
transfer of personnel between two vessels, or a vessel and an aircraft. The process is
slower and more expensive, and if any deficiencies are found the vessel may still
need to dock in order for remedial action to be taken. This may be acceptable in
some circumstances, but for practical day-to-day regulation it is far quicker and
easier for a state official to simply board a vessel that is already moored in port.108
Another important factor is that, from the perspective of vessel operators, ports
are no longer places to linger for days at a time. On medium-to-long voyages
(around 5,000 nautical miles) port costs can account for more than half of total
expenses, and the shorter the journey, the more significant the port cost element.109
As a result, fast turn-around times and related costs are key factors for shipping
operators when selecting a port,110 and port operators are accordingly subject to
significant economic pressures to maintain efficiency if they do not wish to lose
trade to their competitors.111 Given the importance of ports to an economy, both in
terms of their income-generating potential and their role in the logistics chain,112
these economic pressures will also be felt by the port state, even if its ports are run
by private sector interests.113
2.3.4 Summary
Port state jurisdiction can be identified as a concept separate from coastal state
jurisdiction based on the following three factors. First, the sovereignty that the
coastal state exercises over its internal waters and territorial sea as distinguished
from other maritime zones. Second, the voluntary presence of vessels in the port,
removing any question of innocent passage and the jurisdictional limitations
associated with that concept under UNCLOS. Third, the practical advantages
107
Subject to the limited exception in UNCLOS art 8(2), see above note 64.
108
Holger Meyer, Project Officer, Port State Control/Ship Safety, European Maritime Safety
Authority, correspondence with the author (13 February 2012).
109
Kaukiainen, “Growth, Diversification and Globalization: Main Trends in International
Shipping since 1850” (2008), 3 and 49.
110
See Branch, Elements of Shipping (2007), 393–396.
111
See Macário and Viegas, “Bottlenecks of Efficiency and the Development of Port Business”
(2009).
112
Meersman, van Voorde and Vanelslander, “The Economic Fabric of Ports” (2009), 90–92.
113
On the connection between this economic interest and the state’s regulatory interests see
Chap. 3, Sect. 3.3.1.
2.4 Jurisdiction Over Vessels in Port 25
enjoyed by the coastal state when controlling vessels within its port. This combina-
tion of legal and practical advantages is a theme running through any discussion of
port state jurisdiction,114 and is discussed further in Chap. 3.
2.4 Jurisdiction Over Vessels in Port
While UNCLOS is now the starting point for assessing a coastal state’s jurisdiction
over foreign vessels, it is necessary to consider additional sources of international
law to establish the extent of a state’s jurisdiction over vessels in port. The reason
for this is that the drafters of the Convention deliberately chose not to address the
issue of port state jurisdiction in a comprehensive manner, on the basis that states
should be free to deal with their internal waters as they saw fit.115
2.4.1 Basic Position
The basic position under customary international law is that a port state’s laws
apply (where the state so chooses) to visiting foreign vessels, as well as to the
persons and cargo on board, and that those laws may be enforced by the state
authorities.116 UNCLOS makes only limited reference to this level of authority,
notably in the context of port entry conditions.117 This basic position is complicated
by the question of where the regulated events took place, and how the relevant law
has been framed so as to apply to international shipping. For example, whether the
114
See for example Ringbom, The EU Maritime Safety Policy and International Law (2008), 203.
115
See Chap. 1, Sect. 1.1. Deliberation on the issue has been similarly postponed on prior
occasions: see League of Nations, Conference for the Codification of International Law, Seances
des Commissions: Vol III – Proces-Verbaux de la Deuxième Commission (1930), 96–99.
116
Ortolan, Règles Internationales et Diplomatie de la Mer (vol 1, 1864), 140–141; Institut de
Droit International, “Règlement sur le Régime Légal des Navires et de leurs Équipages dans les
Ports Étrangers” (1898), arts 2, 5 and 13; Laun, “Le Régime International des Ports” (1927), 59;
Harvard Law School Research in International Law, “The Law of Territorial Waters” (1929), art
18; Wilson, Elements of International Law by Henry Wheaton: The Literal Reproduction of the
Edition of 1866 by Richard Henry Dana Jr (1933), para 101; R v Keyn (1876) 2 ExCh Div
63 (Court for Crown Cases Reserved), 82 and 161; Jessup, The Law of Territorial Waters and
Maritime Jurisdiction (1927), 144–145 and 191; Lauterpacht, International Law: A Treatise by L
Oppenheim (vol 1, 1955), para 190c; Hyde, International Law: Chiefly as Interpreted and Applied
by the United States (1957), para 221; McDougal and Burke, The Public Order of the Oceans: A
Contemporary International Law of the Sea (1962), 94–97 and 156–157; Degan, “Internal Waters”
(1986), 22; American Law Institute, Restatement of the Law Third: The Foreign Relations Law of
the United States (vol 2, 1987), 36 and 42; Churchill and Lowe, The Law of the Sea (1999) 65.
117
UNCLOS, arts 25(2) and 211(3); see Chap. 4, Sect. 4.4.6.
relevant infringement occurred within port, in the territorial sea, EEZ or on the high
seas,118 and whether the relevant law was framed as a port entry condition. These
issues are discussed in more detail in the chapters which follow.
2.4.2 Convention-Based Limitations
Perhaps unsurprisingly, port states have been reluctant to incorporate express

limitations of their prescriptive jurisdiction over visiting foreign vessels into
treaties. The only example of such a limitation found in UNCLOS is the require-
ment that publicity be given to environment-related port entry requirements; a
minor and uncontroversial measure.119 By contrast the Convention contains a
number of limitations applicable to a port state’s enforcement jurisdiction in the
environment-focused Section 7 of Part XII.120
A more significant limitation of prescriptive jurisdiction can be found in regula-
tion 15(1) of Annex VI of MARPOL (Prevention of Air Pollution from Ships),
which provides that:
If the emissions of [Volatile Organic Compounds] from a tanker are to be regulated in a port
or ports or a terminal or terminals under the jurisdiction of a Party, they shall be regulated in
accordance with the provisions of this regulation.
The effect of this provision is to limit by agreement the port state jurisdiction of
the signatories in the context of one form of pollution.121 This development comes
some decades after a more comprehensive limitation on the jurisdiction of coastal
states, which would have prevented the establishment of unilateral vessel design
and equipment standards, was unsuccessfully proposed during the initial drafting of
MARPOL.122
In addition to these examples from multilateral agreements, some bilateral
treaties include provisions through which states agree to exercise only limited
authority over visiting foreign vessels in defined circumstances, such as where
events impact only upon the “internal affairs” of the vessel.123
118
See Akehurst, “Jurisdiction in International Law” (1972–1973), 153; Degan, “Internal Waters”
(1986), 26; Molenaar, “Port State Jurisdiction” (2010), paras 14, 16 and 18.
119
UNCLOS, art 211(3).
120
See Lagoni, “The Prompt Release of Vessels and Crews before the International Tribunal for
the Law of the Sea: A Preparatory Report” (1996).
121
122
See Brown, “The Prevention of Marine Pollution by Oil from Ships: Competence to Establish
Standards and Competence to Enforce Standards” (1975), 203–209.
123
See Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), para 190c;
McDougal and Burke, The Public Order of the Oceans: A Contemporary International Law of the
Sea (1962), 169; American Law Institute, Restatement of the Law Third: The Foreign Relations
Law of the United States (vol 2, 1987), 42. For the “internal affairs” concepts see below Sect.
2.4.3.3.
2.4.3 Other Limitations
Apart from limitations agreed to within treaties, three more specific limitations
must be raised in the context of port state jurisdiction. However, only the first two of
these are recognised under international law. Conversely, only the third would be
relevant to the regulation of international merchant shipping on a day-to-day basis.
2.4.3.1 Sovereign Immunity
Government vessels are accorded a special position under international law, which
prevents them from being made subject to other states’ control in most cases.124
The sovereign immunity exemption found in UNCLOS applies to warships and
other government vessels operated for non-commercial purposes,125 and while
these provisions apply only to such vessels in the territorial sea and high seas,126
there is no doubt that the immunity also applies in foreign ports. The host state may
attach conditions to visit, such as the duration of its stay, sanitation and quarantine
requirements, and where to cast anchor, but even if in breach of local laws such
vessels cannot be arrested or otherwise subjected to enforcement measures, apart
from expulsion.127
2.4.3.2 Vessels in Distress
To come within the full extent of port state jurisdiction a vessel must arrive in port
voluntarily, as opposed to being forced to take shelter in the port as a result of distress
or force majeure.128 As the focus of this work is on the regulation of international
merchant shipping in the ordinary course of trade, the issue of which port state laws
will apply to vessels in distress is not of particular relevance. Essentially, the majority
of commentators are of the view that the port state should limit the exercise of its
124
The Schooner Exchange 11 US 116 (1812) (SC); The Parlement Belge (1880) 5 PD 197 (CA);
Degan, “Internal Waters” (1986), 28–37.
125
See UNCLOS, Part II, Section 3, Subsection C and arts 95–96.
126
UNCLOS, arts 29–32 and 95–96.
127
Harvard Law School Research in International Law, “The Law of Territorial Waters” (1929),
329; Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), para 450;
the Sea (1962), 131–132; Strohl, The International Law of Bays (1963), 49; for expulsion from the
territorial sea see UNCLOS, art 30.
128
The rule is not specific to ports, as vessels may also seek shelter in other parts of a state’s
internal waters such as a bay: see Chircop, “The Customary Law of Refuge for Ships in Distress”
(2006), 191.
authority over a vessel that has entered port as a result of distress, refraining from the
strict application of local regulations.129 Accordingly, it is a factor that a legislator
may wish to bear in mind when developing legislation based on port state jurisdiction.
2.4.3.3 Events on Board and the “Internal Affairs” Approach
The earliest discussions of jurisdiction over vessels pre-date the current era of
shipping regulation, where vessels are routinely examined against various safety
and environmental standards, with the vessel’s operator being held liable for any
shortcomings. Instead the focus was usually on crimes committed by persons on
board a foreign vessel,130 either while the vessel was in port,131 or before its
arrival.132 The earliest authorities can be additionally confusing for contemporary
readers, given the authors’ understandable lack of certainty over the nature and
extent of each state’s internal waters and territorial sea, hence the explicitly port-
focussed nature of some writings.133 The question facing the international commu-
nity at the time was essentially whether the legal position of a foreign vessel (and
those on board) entering port differed from that of a foreign citizen entering on foot
across a land border. In other words, would the existence of the competing flag state
jurisdiction exempt the vessel and its crew from the port state’s jurisdiction, and if
so to what extent?
The first aspect of this question was soon resolved, and it became universally
accepted that a state could exercise jurisdiction over a foreign vessel in port which,
as stated above, continues to be the basic position to this day. However, the precise
extent of this jurisdiction has long been a matter of debate, in what has sometimes
been framed as a clash between French and Anglo-American jurisprudence.
The dispute is generally traced back to an 1806 decision of the French Conseil
d’Etat in relation to The Sally and The Newton. In both cases a United States vessel
was visiting a French port when one crew member assaulted another, and the
question arose as to whether the French authorities had jurisdiction over the alleged
crime. It was held that the French courts did have jurisdiction over foreign vessels
and their crews in normal circumstances, but where only the internal discipline of
129
299; Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), para 190c;
Hydeman and Berman, International Control of Nuclear Maritime Activities (1960), 153–162;
Hakapää, Marine Pollution in International Law: Material Obligations and Jurisdiction (1981),
178; Degan, “Internal Waters” (1986), 11–12; Chircop, “The Customary Law of Refuge for Ships
in Distress” (2006), 220 and 224.
130
For an historical perspective see O’Connell, The International Law of the Sea (1984), ch 24.
131
See Wildenhus’s Case 120 US 1 (1887) (SC).
132
See R v Anderson (1868) LR 1 CCR 161 (Court for Crown Cases Reserved).
133
See for example Charteris, “The Legal Position of Merchantmen in Foreign Ports and National
Waters” (1920–1921).
the vessel was affected (such as where a crime is committed by one crew member
against another) they could not exercise jurisdiction unless requested to do so or
where “la tranquillité du port” had been compromised.134
This position is sometimes referred to as the “internal affairs” or “internal
economy” approach, and later in the nineteenth century it was relaxed somewhat
to exclude homicide and other crimes which could be seen as inherently disruptive
to the port state.135 A number of authors later argued that the approach set out by the
Conseil d’Etat represents not only a domestic position regarding jurisdiction over
foreign ships, but also a binding rule of customary international law, given its
apparent acceptance by a number of states.136 The ongoing influence of the internal
affairs approach can be seen in the “Criminal jurisdiction on board a foreign ship”
provision of UNCLOS,137 as well as in some consular treaties.138
The United Kingdom and United States, among other countries, have declined to
recognise the French approach as a rule of international law. Their position is that a
port state may exercise complete jurisdiction over a visiting vessel, even though it
will generally overlook purely “internal” matters in practice on the basis of inter-
national comity.139 Setting out its view of the matter in 1887, the United States
Supreme Court in Wildenhus’s Case stated that140:
From experience . . . it was found long ago that it would be beneficial to commerce if the
local government would abstain from interfering with the internal discipline of the ship, and
the general regulation of the rights and duties of the officers and crew towards the vessel or
among themselves. And so by comity it came to be generally understood among civilized
nations that all matters of discipline and all things done on board which affected only the
134
A copy of the original French text may be found in Perels, Das internationale öffentliche
Seerecht der Gegenwart (1903), 62; an English translation is provided in Charteris, “The Legal
Position of Merchantmen in Foreign Ports and National Waters” (1920–1921), 50–51.
135
See Charteris, “The Legal Position of Merchantmen in Foreign Ports and National Waters”
(1920–1921), 53–54; Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927),
145–154; Churchill and Lowe, The Law of the Sea (1999), 66–67.
136
See Francioni, “Criminal Jurisdiction over Foreign Merchant Vessels in Territorial Waters: A
New Analysis” (1975), 30; Boisson, Safety at Sea: Policies, Regulations and International Law
(1999), 170.
137
UNCLOS, art 27; but see Francioni, “Criminal Jurisdiction over Foreign Merchant Vessels in
Territorial Waters: A New Analysis” (1975), 31–33 describing this as merely a Pyrrhic victory for
the French position.
138
See Hakapää, Marine Pollution in International Law: Material Obligations and Jurisdiction
(1981), 170.
139
307–309; League of Nations, Conference for the Codification of International Law, Bases of
Discussion: Volume II – Territorial Waters (1929), 98–99; Hyde, International Law: Chiefly as
Interpreted and Applied by the United States (1957), para 222; Churchill and Lowe, The Law of the
Sea (1999), 66. For the concept of comity in international law see Lauterpacht, International Law:
A Treatise by L Oppenheim (vol 1, 1955), para 19c; Akehurst, “Jurisdiction in International Law”
(1972–1973), 214–216.
140
Wildenhus’s Case 120 US 1 (1887) (SC), 12; see also Patterson v Bark Eudora 190 US
169 (1903) (SC), 178; Cunard Steamship Co Ltd v Mellon 262 US 100 (1923) (SC), 124.
vessel or those belonging to her, and did not involve the peace or dignity of the country, or
the tranquility of the port, should be left by the local government to be dealt with by the
authorities of the nation to which the vessel belonged as the laws of that nation or the
interests of its commerce should require.
In other words, while a state is free to adopt the French position as a matter of
domestic law or policy, international law recognises no such limitation on a state’s
jurisdiction. A number of distinguished authors have supported this approach,141
arguing that the French approach is not a rule of customary international law but
rather “a conception of state interest leading in specified cases to a renunciation of
local jurisdiction”.142
Moreover, as a number of commentators have pointed out since at least the 1920s,
the difference in practice between the two approaches is minimal. It would appear
that those states following the Anglo-American approach tend to refrain from
exercising jurisdiction over matters such as discipline that could be viewed as purely
“internal” to the vessel, while those adopting the French position143 tend towards a
relatively expansive interpretation of matters that may be seen as disturbing the peace
of the port, leading to a not dissimilar outcome.144 Most states appear to accept that
the flag state’s own laws and the power of the master and local consul145 to govern the
vessel are sufficient in practical terms for minor incidents.146
Although the theoretical differences are unlikely to ever result in one approach
being declared completely meaningless and the other an iron-cast principle of
customary international law,147 this is not a major hindrance to the contemporary
141
Wilson, Elements of International Law by Henry Wheaton: The Literal Reproduction of the
Edition of 1866 by Richard Henry Dana Jr (1933), para 102: Jessup, The Law of Territorial Waters
and Maritime Jurisdiction (1927), 191–194; Lauterpacht, International Law: A Treatise by L
Oppenheim (vol 1, 1955), para 190c.
142
Charteris, “The Legal Position of Merchantmen in Foreign Ports and National Waters”
(1920–1921), 46.
143
For surveys of these jurisdictions see Charteris, “The Legal Position of Merchantmen in
Foreign Ports and National Waters” (1920–1921); League of Nations, Conference for the Codifi-
cation of International Law, Bases of Discussion: Volume II – Territorial Waters (1929), 97 and
following; Lenoir, “Criminal Jurisdiction over Foreign Merchant Ships” (1935); Lee, “Jurisdiction
over Foreign Merchant Ships in the Territorial Sea: An Analysis of the Geneva Convention on the
Law of the Sea” (1961), 82.
144
Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 192; Harvard Law
School Research in International Law, “The Law of Territorial Waters” (1929), 307; McDougal
and Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea (1962),
164–165; Colombos, The International Law of the Sea (1967), para 350; Degan, “Internal Waters”
(1986), 24; Churchill and Lowe, The Law of the Sea (1999), 66.
145
Although their role has declined significantly since the mid-twentieth century, the consul of the
flag state often remains the most appropriate person to oversee the flag state’s responsibilities when a
vessel is in a foreign port: see generally Lee and Quigley, Consular Law and Practice (2008), ch 19.
146
See Francioni, “Criminal Jurisdiction over Foreign Merchant Vessels in Territorial Waters: A
New Analysis” (1975); Churchill and Lowe, The Law of the Sea (1999), 65–66.
147
Francioni, “Criminal Jurisdiction over Foreign Merchant Vessels in Territorial Waters: A New
Analysis” (1975), 34.
2.5 Port Access 31
exercise of port state jurisdiction. If the Anglo-American approach is supported

then there is no limitation to cause concern but, even if the French view were to be
taken as binding on the international community, it is aimed primarily at matters
such as disciplinary disputes and minor crimes which involve only the crew, and
does not impact on other aspects of shipping such as safety and environmental
matters.148
The stance taken by this author is that the French position does not represent a
rule of customary international law. Instead any use of an “internal affairs”-type
doctrine by a state should be seen as a matter of domestic law only, concerning the
extent to which that state is prepared to apply its laws to foreign vessels.149 Such a
rule may concern only the state’s approach to on-board crimes, as in the original
French doctrine, or a broader range of laws. An example of the latter approach can
be seen in the 2005 United States Supreme Court decision in Spector, where the
“internal affairs” doctrine was discussed and applied as a domestic law concept for
determining whether domestic legislation (in that case a law concerning the provi-
sion of access to places of accommodation for disabled persons) was intended to
apply to visiting foreign vessels.150
2.5 Port Access
Separate from the issue of a port state’s authority over a visiting foreign vessel is
that of the vessel’s right to access port in the first place. Not all ports are open to
international trade all of the time. Some may be designated as restricted military
areas, while others may be temporarily closed for health or security reasons.151
However, it has been argued that where a port is “open for business” a foreign
vessel has a right to enter that port under customary international law.
2.5.1 A Customary Right of Access?
Notable among the authorities on this matter is a statement from the 1958 Aramco
arbitration that “[a]ccording to a great principle of international law, the ports of
every state must be open to foreign vessels and can only be closed when the vital
148
See the comments of the French delegation in relation to port state jurisdiction in League of
Nations, Conference for the Codification of International Law, Bases of Discussion: Volume II –
Territorial Waters (1929), 99.
149
See also Chap. 6, Sect. 6.4.1.
150
Spector v Norwegian Cruise Line Ltd 545 US 119 (2005) (SC). See also Chap. 4, Sect. 4.1.3.
151
See for examples Hydeman and Berman, International Control of Nuclear Maritime Activities
(1960), 134.
interests of the state so require”.152 Authors such as Laun,153 Hyde,154 Colombos155

and Dupuy156 have also given support to this position, with perhaps the most
significant work promoting the existence of such a right being the United States’
1987 Restatement of foreign relations law.157 Much of the argument in favour of a
right of access is based on the idea of an obligation to promote international
commerce and free communication, as well the idea that without free access to
foreign ports freedom of navigation would be meaningless.
However, in the decades following the Aramco decision a number of scholars
have explored this issue and persuasively concluded that there is no such right of
access,158 relying on international agreements such as UNCLOS as well as court
and tribunal decisions,159 and the work of scholarly international law bodies160 in
their analysis. The conclusion of this majority of scholars is that the port state may
refuse access to the vessels of a particular type (including warships and other
government vessels),161 and may open or close each of its various ports to interna-
tional traffic as it sees fit.162 This position is based on the absence of sufficient
152
Saudi Arabia v Arabian American Oil Company (Aramco) (1958) 27 ILR 117, 212.
153
Laun, “Le Régime International des Ports” (1927), 30 and following.
154
Hyde, International Law: Chiefly as Interpreted and Applied by the United States (1957), para
187.
155
Colombos, The International Law of the Sea (1967), para 181; see also Cundick, “International
Straits: The Right of Access” (1975), 115–116.
156
Dupuy, “The Sea Under National Competence” (1991), 252.
157
American Law Institute, Restatement of the Law Third: The Foreign Relations Law of the
United States (vol 2, 1987), 36 and 38–40; but see the criticisms in Burke, “Customary Law of the
Sea: Advocacy or Disinterested Scholarship?” (1989), 520–522.
158
Hydeman and Berman, International Control of Nuclear Maritime Activities (1960), 131–142;
Sea (1962), 103–108; Lowe, “The Right of Entry into Maritime Ports in International Law”
(1977); Degan, “Internal Waters” (1986), 15–19; Kasoulides, Port State Control and Jurisdiction:
Evolution of the Port State Regime (1993), 2–22; Lagoni, “Internal Waters, Seagoing Vessels in”
(1995), 1037; Tasikas, “The Regime of Maritime Port Access: A Relook at Contemporary
International and United States Law” (2007).
159
Brown v Duchesne 60 US 183 (1857) (SC), 198; The Annapolis v The Johanna Stoll (1861)
Lush 295; 167 ER 128 (HC Ad), 134; Patterson v Bark Eudora 190 US 169 (1903) (SC), 179;
Strathearn Steamship Co Ltd v Dillon 252 US 348 (1920) (SC), 356; Khedivial Line SAE v
Seafarers’ International Union 278 F 2d 49 (1960) (CA, 2nd Circuit), 52; Case concerning
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America) [1986] ICJ Rep 14 (ICJ), para 213.
160
Institut de Droit International, “The Distinction between the Régime of the Territorial Sea and
the Régime of Internal Waters” (1957).
161
Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), para 450.
Restrictions on a particular flag may be more objectionable as such a practice can lead to
allegations of discrimination, see for example de La Fayette, “Access to Ports in International
Law” (1996), 20–21.
162
Churchill and Lowe, The Law of the Sea (1999), 62; Kasoulides, Port State Control and
Jurisdiction: Evolution of the Port State Regime (1993), 21.
2.5 Port Access 33
evidence for a rule of customary international law amounting to a right of access

that limits state sovereignty,163 and has been acknowledged in the recent fisheries
agreement on port state measures.164 Instead it has been suggested that, if any
limitations do exist in this area, they would be in the form of a customary interna-
tional law obligation to give due publicity to a port’s closure.165
2.5.2 Access Rights by Agreement
There does not appear to have been any attempt to reply to the majority’s line of
argument regarding port access in the past 20 years. It may be that any heat has been
removed from the legal debate by the evolution of the position, as far as daily
practice is concerned, of widespread access stemming from coastal states’ eco-
nomic interests in having foreign vessels visit their ports. This development can
also be traced to an extensive network of treaty-based access rights, primarily
established by hundreds of bilateral treaties of “friendship, commerce and naviga-
tion”. Through such treaties states arrange a variety of matters such as the treatment
of each other’s nationals, particularly in the commercial context.166 While the
“navigation” aspect of these agreements has been of only secondary importance
for at least 50 years,167 a mutual right of port access is commonly included,
allowing ships to use ports on an equal footing with the host nation’s vessels.168
In addition to these bilateral treaties the Convention and Statute on the Interna-
tional Regime of Maritime Ports of 1923 is still in force, and was reasonably
successful with around 50 signatories, although there have been fewer ratifications
and most major maritime states are not parties.169 It does not appear to play a
163
See for example Lowe, “The Right of Entry into Maritime Ports in International Law” (1977), 619;
Tasikas, “The Regime of Maritime Port Access: A Relook at Contemporary International and United
States Law” (2007), 44. The position may differ in relation to navigable international rivers, see
Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime (1993), 15–17.
164
Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and
Unregulated Fishing (22 November 2009), art 4(1).
165
Wilson, Elements of International Law by Henry Wheaton: The Literal Reproduction of the
Edition of 1866 by Richard Henry Dana Jr (1933), para 100; see also The Schooner Exchange
11 US 116 (1812) (SC), 141 in the context of foreign warships; but see Canadian Transport
Company v United States of America 663 F 2d 1081 (1980) (CA, District of Columbia Circuit),
1087–1088.
166
See for example Friendship, Commerce and Navigation: Treaty and Protocol between the
United States of America and Japan (2 April 1953), art XIX.
167
Walker “Modern Treaties of Friendship, Commerce and Navigation” (1958), 806; but see
Feehan, “International Update: The United States and Ukraine Sign New Three-Year Bilateral
Maritime Port Agreement” (1997).
168
Walker, “Modern Treaties of Friendship, Commerce and Navigation” (1958), 816.
169
Convention and Statute on the International Regime of Maritime Ports (9 December 1923). St
Vincent and the Grenadines became the most recent signatory in September 2001.
significant role in the regulation of international maritime trade in the twenty-first

century. Through article 2 of the Convention’s Statute each contracting party
extends “equality of treatment” to the vessels of other parties in relation to the
use of its maritime ports, including “freedom of access to the port”. This right to
equality of treatment, which can also be described in terms of non-discrimination
against particular flags, can only be suspended in exceptional cases during an
emergency affecting the state’s safety or “vital interests”.170
This discrimination focus is also evident in the world trade context. While the
General Agreement on Tariffs and Trade is not exclusively focussed on maritime
trade, article V(2) provides that171:
There shall be freedom of transit through the territory of each contracting party, via the
routes most convenient for international transit, for traffic in transit to or from the territory
of other contracting parties. No distinction shall be made which is based on the flag of
vessels, the place of origin, departure, entry, exit or destination, or on any circumstances
relating to the ownership of goods, of vessels or of other means of transport.
Accordingly, a denial of port access to vessels operating under particular flags

could in some circumstances amount to a trade barrier contravening the Agree-
ment,172 although this provision is unlikely to impact on any regulations affecting
matters such as vessel safety standards, as opposed to the goods carried within a
vessel.173 In a similar vein, the Member States of the EU are likely to be under an
obligation to grant each others’ vessels a right of access in order to prevent
discrimination in relation to the movement of goods.174
The issue of a vessel’s right of port access has been most keenly debated in the
context of vessels in distress, which may be turned away by coastal authorities wary
of the vessel’s potential to damage the coastal environmental. An international
agreement regarding access for such vessels may be developed in time.175
170
Convention and Statute on the International Regime of Maritime Ports (9 December 1923), art
16.
171
See Tasikas, “The Regime of Maritime Port Access: A Relook at Contemporary International
and United States Law” (2007), 24–25; Molenaar, “Port State Jurisdiction” (2010), paras 9 and
29–30.
172
McDorman, “Port State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea
Convention” (1997), 310–311; McDorman, “Regional Port State Control Agreements: Some
Issues of International Law” (2000), 219–222.
173
Boyle, “EU Unilateralism and the Law of the Sea” (2006), 21–22.
174
TFEU, art 26(2); see Churchill and Lowe, The Law of the Sea (1999), 63.
175
See Murray, “Any Port in a Storm? The Right of Free Entry for Reasons of Force Majeure or
Distress in the Wake of the Erika and the Castor” (2002); Chircop and Linden (eds), Places of
Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom (2006); Whitehead,
“No Port in a Storm – A Review of Recent History and Legal Concepts Resulting in the Extinction
of Ports of Refuge” (2009); Comité Maritime International, “Places of Refuge Submitted by CMI”
(2009).
2.6 Chapter Summary 35
2.5.3 Summary
States generally allow foreign vessels access to their ports for lawful purposes such
as loading and unloading cargo, and obtaining bunkers, supplies and repairs.176
This practice is backed up by a number of international agreements touching on the
subject of port access, but the aim behind these instruments is to prevent discrimi-
nation against particular countries’ flags, as opposed to the banning of individual
vessels that fail to meet international safety requirements, for example. The key
point is that states keep their ports open to individual foreign vessels in the interests
of commerce and international comity, rather than legal necessity.
2.6 Chapter Summary
Port state jurisdiction needs to be dealt with as a unique concept in international

law, distinguishable from territorial jurisdiction more generally, and from a state’s
jurisdiction over its internal waters or territorial sea. This arises from a combination
of legal and practical factors, primarily:
– the uncontested role of territorial jurisdiction as the most well-established basis
for the exercise of a state’s authority to prescribe and enforce laws;
– the supporting role of the widely-accepted UNCLOS in confirming the coastal
state’s sovereignty over its internal waters and territorial sea;
– the limitations placed on the exercise of coastal state jurisdiction under
UNCLOS, chiefly in relation to the right of innocent passage;
– the crucial role of ports in international shipping; and
– the lack of any significant limitations under international law on the exercise of
the port state’s authority over visiting foreign merchant vessels, including the
lack of any general restrictions on the port state’s ability to control access to its
ports.
The outcome is that states have a relatively free hand when devising legislation
that will apply to foreign vessels in their ports. However, this leaves some jurists
uncomfortable. For example, Churchill and Lowe have argued that some pieces of
legislation applying to foreign vessels may offend against “the rule of comity
concerning the ‘internal economy’ of visiting ships and, more seriously, that in
some respects at least they exceed the limits of jurisdiction which can properly be
claimed on the temporary presence of vessels of foreign ships in ports”.177 The
question of precisely how far this form of jurisdiction should extend is explored
further in the chapters which follow.
176
Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime (1993), 21.
177
Churchill and Lowe, The Law of the Sea (1999), 68–69.
Chapter 3
The Growth of Port State Jurisdiction
This chapter provides an overview of the key economic and political developments
that have influenced the way in which states exercise port state jurisdiction over
visiting foreign vessels. It focuses primarily on the policy interests of port states,
and where the current boundaries of port state jurisdiction lie in practice.
3.1 Historical Development of Port State Jurisdiction and

Shipping Regulation
3.1.1 Early Approaches and Flag State Dominance
Vessels entering a foreign port have been subjected to local laws since ancient
times,1 but while Strohl could observe in 1963 that “during the Phoenician era, the
harbors of Tyre and Sidon were subject to entrance and internal regulations quite
similar to those regulating today’s shipping in ports throughout the world”,2
50 years later such an observation would be harder to sustain. In just a few decades
the role of port states, at least in the developed world, has vastly expanded. More
aspects of shipping are regulated in a more systematic manner than at any previous
point in history. From a legal perspective, these relatively recent developments
reflect significant changes in the way states view their powers and responsibilities
vis-à-vis foreign vessels.
The principal concerns of state authorities in relation to their ports and territorial
seas were (and remain) those matters most likely to impact directly upon the “safety
1
See for examples Reed, Maritime Traders in the Ancient Greek World (2003), 46–49; Cohen,
“Commercial Law” (2005), 299 (ancient Athens); Fayle, A Short History of the World’s Shipping
Industry (1933), 36 (ancient Egypt) and 52 (ancient Rome).
2
Strohl, The International Law of Bays (1963), 14–15.

38 3 The Growth of Port State Jurisdiction
and welfare” of the state,3 such as health and quarantine requirements, along with
immigration and security restrictions.4 For example, from the late fourteenth
century onwards Mediterranean states such as Marseilles, Venice and Pisa
established quarantine regulations applying to all incoming vessels. In a precursor
to many modern regulations, certificates of health were used to prove that a vessel
had departed from its previous port free from disease.5 Economic interests are also
of primary importance in this context, with land-based authorities over the centuries
keen to have vessels visit their ports in order to collect customs duties on the goods
they carry.6 This commercial factor has traditionally been complemented by laws
promoting locally-based shipping operators, usually at the expense of foreign
competitors,7 although modern international trade law has restrained this tendency
to some extent.8 Measures of this kind are referred to in this book as the “tradi-
tional” subjects of port state regulation, and are discussed in more detail below.
Putting these traditional concerns to one side, the extent of port state authorities’
interest in visiting vessels (as opposed to their cargoes) was limited prior to the mid
nineteenth century, with history providing few early examples of laws
demonstrating concern for the seaworthiness of ships and the welfare of those
who sailed in them.9 One notable exception is found in the Venetian laws of the
medieval period, which introduced a precursor to the load-line along with other
far-sighted safety laws,10 while the Hanseatic League of the fifteenth century also
3
See Le Louis (1817) 2 Dods 209; 165 ER 1464 (HC Ad), 1476.
4
See generally Institut de Droit International, “Règlement sur le Régime Légal des Navires et de
leurs Équipages dans les Ports Étrangers” (1898), art 5; Hope, A New History of British Shipping
(1990); A similar group of subjects (customs, fiscal, immigration and sanitary laws) is recognised
in UNCLOS as suitable for coastal state enforcement, even in relation to vessels engaged in
innocent or transit passage: see UNCLOS, arts 19(2)(g), 21(1)(h) (territorial sea), 33 (contiguous
zone), 42(1)(d) (international straits) and 60(2) (EEZ in relation to artificial structures).
5
Keevil, Medicine and the Navy 1200–1900: Volume I – 1200–1649 (1957), 85. Similar measures
were introduced on the Thames in England in the seventeenth century in order to protect the capital
from plague: Keevil, Medicine and the Navy 1200–1900: Volume II – 1649–1714 (1958), 87–88.
6
See Fayle, A Short History of the World’s Shipping Industry (1933), 36, 52, 102 and 123; The
Apollon 22 US 362 (1824) (SC).
7
See generally Fayle, A Short History of the World’s Shipping Industry (1933), 98–99 and
272–275; Harper, The English Navigation Laws: A Seventeenth Century Experiment in Social
Engineering (1939), chs 7 and 8; Hope, A New History of British Shipping (1990), 87.
8
9
Gold, Maritime Transport: The Evolution of International Maritime Policy and Shipping Law
(1981), 118; for a general overview see Boisson, Safety at Sea: Policies, Regulations and Interna-
tional Law (1999), ch 2.
10
Writing on the Rhodian Sea Law as applied in the middle ages Ashburner (citing Goldschmidt)
notes that “A characteristic of the Mediterranean legislations . . . is the care which they take in
seeing that the ship is seaworthy, and in preventing overloading” (clvi). Examples of such
provisions, especially from Venetian law, include restrictions upon the use of ballast and the
loading of heavy goods. If a vessel in port did not comply with these safety-related conditions the
shipowner could be fined: Ashburner, The Rhodian Sea-Law (1909), clvi-clviii. See also Fayle, A
Short History of the World’s Shipping Industry (1933), 74–77.
3.1 Historical Development of Port State Jurisdiction and Shipping Regulation 39
took an interest in the construction and loading of their vessels.11 Nonetheless, it is

difficult to determine whether such moves towards safer shipping had more to do
with protecting the interests of investors, as opposed to humanitarian concerns.12
With the exception of outright fraudsters,13 shipping insurers in particular have
always had reason to demand that some level of safety be maintained, in order to
reduce their own risks.14
Another limited exception is the well-being of passengers. Even in medieval
times some municipal governments in the western Mediterranean developed load-
ing limits and other shipping regulations for the safe carriage of pilgrims, which
“forced governments into increased involvement in shipping and, over time, it led
them to define demand, in fact to direct technical change”.15 This aspect of history
was repeated in nineteenth century Britain, where growing passenger numbers led
to safety reforms.16
Apart from these relatively minor moves towards safer shipping, the
governments of the early 1800s, while witnessing great technological changes in
the shipping industry, had little to offer in terms of promoting safety. As Fayle
notes17:
We have seen traces of this [safety] principle in the Venetian Statutes of the Middle Ages,
but the fierce national rivalries and hard commercialism of the seventeenth and eighteenth
centuries, and the earlier part of the nineteenth, had blinded men’s eyes to considerations of
safety and humanity. States were more concerned with promoting, often by mistaken
means, the interests of shipowners, than with enforcing the obligations to the public they
served and the men who served them.
A short while later this position began to shift, led by the United Kingdom, then
the world’s dominant maritime power. In 1836 a Parliamentary investigation into
the causes of shipwrecks was undertaken, highlighting the inadequacy of ships’
construction and equipment, loading practices, and crewing standards.18 This led to
a slow process of safety reform,19 eventually including the introduction of the
11
See Fayle, A Short History of the World’s Shipping Industry (1933), 99–100.
12
Hope, A New History of British Shipping (1990), 256.
13
Such as those who would insure an effectively doomed ship in order to profit from its total loss:
see Fayle, A Short History of the World’s Shipping Industry (1933), 284.
14
Milne, “North of England Shipowners and Their Business Connections in the Nineteenth
Century” (2008), 148.
15
Unger, The Ship in the Medieval Economy 600–1600 (1980), 151–152; see also Hope, A New
History of British Shipping (1990), 45.
16
Course, The Merchant Navy: A Social History (1963), 195 and 199; Hope, A New History of
British Shipping (1990), 279.
17
Fayle, A Short History of the World’s Shipping Industry (1933), 284.
18
Course, The Merchant Navy: A Social History (1963), 200–205; Hope, A New History of British
Shipping (1990), 279–281.
19
Ilbert, The Merchant Shipping Act 1876 with an Introduction and Copius Notes Showing the
Alterations Effected in the Law by Recent Statutes (1876), 1–8; Editorial, “The Unseaworthy and
the Worthy” (1990); Hope, A New History of British Shipping (1990), 281–282, 287–289;
now-famous load line (or “Plimsoll” line as the device came to be known) by way
of the Merchant Shipping Act of 1876.20
The move towards greater safety also began to involve multilateral cooperation.
By 1857 the international community began to adopt an International Code of
Signals, initially developed by the British Board of Trade, which laid the
foundations for future cooperation in this important area of safety.21 The rise of
steam-powered vessels also drove the introduction of the first international collision
regulations. Initiated by the United Kingdom and France in 1863, these slowly grew
towards a global consensus in the form of an 1889 conference approving the
International Rules of the Road.22
However, around this time the regulatory efforts of states appear to have been
focused on domestic shipping only. Questions over the seaworthiness of any foreign
vessels carrying goods and persons to and from their shores, or the competence of
their crews, were not a priority as far as such authorities were concerned, and as a
general rule they did not attempt to enforce their domestic shipping regulations
against foreign vessels.23
This began to change by the late nineteenth century, when the Merchant
Shipping Act of 1876 introduced what appears to be the United Kingdom’s first
regulations relying on port state jurisdiction to address the safety of foreign vessels
engaged in international trade.24 First, any foreign vessel loaded in an unsafe
Merchant Shipping Act 1854, 17 & 18 Vic, c 104. See Fayle, A Short History of the World’s
Shipping Industry (1933), 237–238.
20
Merchant Shipping Act 1876, 39 & 40 Vic, c 80. This line was painted on the side of a ship
indicating maximum permitted loading limits under different conditions, although initially it was
ineffective as its position was left to the shipowner’s discretion: see Ilbert, The Merchant Shipping
Act 1876 with an Introduction and Copius Notes Showing the Alterations Effected in the Law by
Recent Statutes (1876), 12–13; Jessup, The Law of Territorial Waters and Maritime Jurisdiction
(1927), 177; Course, The Merchant Navy: A Social History (1963) 227–239; Hope, A New History
of British Shipping (1990), 321–322.
21
National Imagery and Mapping Agency, International Code of Signals for Visual, Sound and
Radio Communications (2003), iii; Lauterpacht, International Law: A Treatise by L Oppenheim
(vol 1, 1955), 598–599.
22
This agreement was the predecessor of the current Collision Convention: Cockcroft and
Lameijer, A Guide to the Collision Avoidance Rules: International Regulations for Preventing
Collisions at Sea (1981), 14–15. On the conference and related international efforts see Gold,
Maritime Transport: The Evolution of International Maritime Policy and Shipping Law (1981),
122–123 and 126–131.
23
Boisson, Safety at Sea: Policies, Regulations and International Law (1999), 52; Özçayir, Port
State Control (2004), para 3.22; The Rhodian Sea Laws, for example, are silent on their applica-
tion to foreign vessels: Ashburner, The Rhodian Sea-Law (1909), cxxiv-cxxv. For a historical
perspective on measures related to crewing see Couper, “Historical Perspectives on Seafarers and
the Law” (2005), especially 15–19.
24
An earlier Act had applied certain British safety laws to foreign steamships, but only those
carrying passengers between places in the United Kingdom: Merchant Shipping Act 1854, 17 &
18 Vic, c 104, s 291.
manner while at a United Kingdom port could be detained,25 and second, it became
an offence for any such vessel to arrive in a United Kingdom port in winter with a
cargo of timber carried on deck.26 The bill’s draftsman noted that the first of these
provisions set “a precedent for legislating for foreign ships”,27 although in relation
to the second he doubted the legality or effectiveness of regulating the loading of
foreign ships in foreign ports.28 The United States also doubted whether this
approach was lawful at the time,29 but Britain’s domestic courts had no qualms in
enforcing such safety-related provisions, noting that the Act was “for the benefit of
those foreigners who enjoy [the United Kingdom’s] hospitality”, regardless of their
vessel’s nationality.30 Ships of any nationality carrying emigrants from British
ports were required to carry specified safety equipment and meet other safety
requirements in 1894,31 and an even more substantial step was taken when the
load line requirement and other British safety regulations were made applicable to
foreign vessels in port under the Merchant Shipping Act 1906.32
However, these initiatives remained an exception to the way in which shipping
was regulated for many decades.33 The practice of flag states looking after their
own vessels’ affairs remained largely unchallenged, especially as shipowners
tended to arrange the flagging, crewing and operation of their vessels from within
a single state.34 Even though a growing number of international agreements set out
common vessel standards, the enforcement of these standards was left to the flag
25
Merchant Shipping Act 1876, 39 & 40 Vic, c 80, s 13.
26
Merchant Shipping Act 1876, 39 & 40 Vic, c 80, s 24.
27
He also foreshadowed regulations yet to come, noting the close connection between questions of
vessel loading and questions of vessel construction and equipment: Ilbert, The Merchant Shipping
Act 1876 with an Introduction and Copius Notes Showing the Alterations Effected in the Law by
Recent Statutes (1876), 46.
28
Neither provision formed part of the original draft bill. They were instead added by Parliament
in committee: Ilbert, The Merchant Shipping Act 1876 with an Introduction and Copius Notes
Showing the Alterations Effected in the Law by Recent Statutes (1876), 46, 68–69.
29
Akehurst, “Jurisdiction in International Law” (1972–1973), 205, fn 9.
30
Chalmers v Scopenich (1892) 1 QB 735 (HC Ad), 738.
31
Merchant Shipping Act 1894, 57 & 58 Vic, c 60, s 289 and following.
32
Merchant Shipping Act 1906, 6 Edw VII, c 48, Part 1; see Hope, A New History of British
Shipping (1990), 343.
33
Anderson, “The Roles of Flag States, Port States, Coastal States and International Organisations
in the Enforcement of International Rules and Standards Governing the Safety of Navigation and
the Prevention of Pollution from Ships under the UN Convention on the Law of the Sea and other
International Agreements” (1998), 565.
34
This can be readily discerned in the way that older texts on shipping discuss “national fleets”,
compare the total tonnage of the “traditional” maritime nations (such as the United Kingdom,
United States, Germany, Norway, France, Sweden, Japan and so on), and generally describe the
marine sector in close connection with the interests of a particular country: see for examples Fayle,
A Short History of the World’s Shipping Industry (1933), ch XI; McDowell and Gibbs, Ocean
Transportation (1954), ch 6. This approach was centuries old: see Ashburner, The Rhodian
Sea-Law (1909), cxxiv. This is not to suggest that a ship’s crew could not be multinational in
character: Fayle, A Short History of the World’s Shipping Industry (1933), 288–289.
state alone. For example, the first SOLAS convention of 191435 would have given
only a poorly-defined inspection role to port states,36 with flag states retaining sole
responsibility for surveying relevant vessels, issuing safety certificates, and passing
legislation to deal with breaches of the convention.37 At the time of the
Convention’s drafting there were practical and legal arguments raised in relation
to an increased port state role, but a compromise was reached in favour of a limited
inspection regime in order to save costs.38 International practices have changed
significantly since this time.
3.1.2 The Modern Maritime Regulatory Environment
Following World War Two the international community commenced a major

regulatory effort in relation to shipping that continues to this day, and which has
given port, and to a lesser extent coastal states a far greater role. Three key
developments are commonly identified as giving rise to this shift. The first was
the demise of national fleets and the subsequent rise of what are often referred to as
“flags of convenience”. The second was the impact of the IMO which, following its
establishment in 1958, has taken the leading role in facilitating global cooperation
in the production and ratification of international maritime standards. The third was
the growing awareness of the threat posed to the marine environment by shipping,
emphasised by an increasing number of tanker casualties.39
The much-discussed movement of vessels to open registries began in earnest
after World War Two.40 Prior to this development almost all the world’s tonnage
operated under the flags of the same developed industrial nations in which the
vessels’ owners were based, with crews sourced mainly from the flag state and any
related colonies.41 The primary driver behind the move to offshore registers was
35
Adopted in the aftermath of the Titanic disaster, this convention never entered into force as a
result of the outbreak of World War One.
36
Convention for the Safety of Life at Sea (20 January 1914), arts 61–62. See Furuseth, Safety of
Life at Sea: Analysis and Explanatory Notes of the London Convention on Safety of Life at Sea in
relation to the American Merchant Marine (1914), 13–14.
37
Convention for the Safety of Life at Sea (20 January 1914), arts 2, 5, 57 and 65.
38
Furuseth Safety of Life at Sea: Analysis and Explanatory Notes of the London Convention on
Safety of Life at Sea in relation to the American Merchant Marine (1914), 14–15 (citing a United
States delegate’s report). Furuseth, the President of the Seamen’s Union, argued that this compro-
mise represented a (limited) abandonment of the United States’ control over vessels in port under
international law: 15–16.
39
For a thorough overview see Gold, Maritime Transport: The Evolution of International Maritime
Policy and Shipping Law (1981), ch 6.
40
Examples of vessels maintaining a flexible approach to flag date back to antiquity: see Metaxas,
Flags of Convenience: A Study of Internationalisation (1985), 8–10.
41
Eadie, “Employment of Foreign Seafarers on Australian Controlled Ships: Mixed Nationality
Crewing” (2000), 1–2. See also Chap. 6, Sect. 6.1.2.
fast-growing operating costs, particularly following the efforts of seafarers’ unions

to improve conditions.42 Registries such as Panama, Honduras and Liberia took this
opportunity to attract tonnage, while allowing the ownership or control of the
vessels to remain in the traditional maritime states.43 In other words, the registration
could be made without the need in practice for a “genuine link” between the vessel
and the flag it flew.44 This process allows the flag state to generate revenue through
registry fees, and in return vessel operators enjoy a combination of tax relief and the
ability to hire cheaper labour.45 Hence the term, “flags of convenience”.
In 1958 these registries had around one tenth of world tonnage, by 1970 one fifth,
and by 1980 one third. By 2000 they dominated the market, with around 60 % of
world tonnage.46 However47:
Much more important than the moderate changes in national ownership shares, at least in
terms of globalization, has been the removal of huge amounts of tonnage beyond the reach
of the legal authorities of the countries in which the actual shipowners reside. While the
ships have nominally become subjects of their new flag countries, the latter have fairly
limited power – even if they had the necessary determination – to exercise effective control
over them. This means the powers of the owners are extraordinarily broad. Such
circumstances have created an odd non-national economic environment – a kind of no
man’s land – which resembles certain nineteenth-century colonial enclaves.
The international registers developed by maritime nations such as Norway,

Denmark and Germany were aimed at combating this trend, allowing vessels
engaged in international trade to avoid some of the financial burdens of domestic
operations, while retaining high safety standards.48 Nonetheless, while some open
registries are both “convenient” and responsible when it comes to ship safety, there
can be no denying that the lack of regulatory oversight practised by others has
42
Kaukiainen, “Growth, Diversification and Globalization: Main Trends in International Shipping
since 1850” (2008), 31–32. For a specific national illustration of this process and its impact on the
traditional domestic fleet model see Goto, “Globalization and International Competitiveness: The
Experience of the Japanese Shipping Industry since the 1960s” (1998), 355–379.
43
For example, by 1950 there were around 200 ships owned or controlled by United States-based
operators registered offshore, and this number grew rapidly in a short period: McDowell and
Gibbs, Ocean Transportation (1954), 119, fn 17.
44
On the genuine link concept see Chap. 6, Sect. 6.7.1.
45
McDowell and Gibbs, Ocean Transportation (1954), 107 and 119; Meese, “When Jurisdictional
Interests Collide: International, Domestic, and State Efforts to Prevent Vessel Source Oil Pollu-
tion” (1982), 82–85; Hope, A New History of British Shipping (1990), 407; Parliament of the
Commonwealth of Australia, Ships of Shame: Inquiry into Ship Safety (1992), para 4.8; Branch,
Elements of Shipping (2007), 78–79 and 476–478; König, “Flags of Convenience” (2008).
46
since 1850” (2008), 34; see also Branch Elements of Shipping (2007), 477.
47
since 1850” (2008), 36; see similarly Metaxas, Flags of Convenience: A Study of Internationa-
lisation (1985), 102.
48
Parliament of the Commonwealth of Australia, Ships of Shame: Inquiry into Ship Safety (1992),
para 2.17; Schelin “State Aids and the Operation of Ships: International Ship Registers” (1997).
allowed unscrupulous vessel owners (or their ship management companies)49 to cut
corners, leading to the blacklisting of certain flag states’ vessels50 and damning
reports on vessel casualties.51 In this environment the development of alternative
regulatory approaches, such as measures based on port state jurisdiction, was
inevitable.
Against the background of these changes, the IMO has worked year upon year to
develop international standards that can be agreed to and ratified by the majority of
the world’s key shipping nations. The convention establishing the IMO was initially
signed in 1948, with the goal of encouraging international cooperation in technical
shipping matters, especially regarding “maritime safety and efficiency of naviga-
tion”.52 The agreement did not enter into force until 1958, given the widespread
suspicion that the organisation would interfere with the commercial elements of
domestic shipping industries, and would only serve the interests of established
maritime nations.53 It was not until the 1960s that the IMO began to function,
with wider representation extended to developing nations on its key committees.54
While the IMO’s initial responsibilities included only safety issues, this soon
changed. The environmental threat posed by shipping seems obvious now, but it
was only during the second half of the twentieth century, during which the volume
of oil shipped around the world increased dramatically, that the real scope of the
problem was recognised and addressed.55 Some modest steps to limit the discharge
of oil in territorial waters had earlier been taken around the time of World War
One,56 followed by national legislation in the United Kingdom in 1922,57 and the
United States in 1924,58 but it was not until the advent of the flag state-centred oil
49
50
The 18 flag states on the “black list” of the Paris Memorandum of Understanding on Port State
Control (26 January 1982) for 2009–2011 were (in order from lowest to highest risk) Honduras,
Dominica, Syria, Lebanon, Azerbaijan, Ukraine, Georgia, Cambodia, Comoros, St Kitts
and Nevis, Moldova, Albania, Tanzania, Sierra Leone, Togo, Bolivia, Libya: Paris MOU,
White-Grey-Black Lists (1 July 2012). The International Transport Workers’ Federation maintains
a list of “flag of convenience countries”, available at http://www.itfglobal.org.
51
See for example Parliament of the Commonwealth of Australia, Ships of Shame: Inquiry into
Ship Safety (1992).
52
Convention on the International Maritime Organization (IMO) (6 March 1948), art I (original
version). Until 1982 the organisation was known as the Inter-Governmental Maritime Consultative
Organization.
53
International Maritime Organization, “IMO 1948-1998: A Process of Change” (September
1998), 4.
54
International Maritime Organization, “IMO 1948-1998: A Process of Change” (September
1998), 5–6.
55
See Churchill and Lowe, The Law of the Sea (1999), ch 15.
56
See Pritchard, Oil Pollution Control (1987) 1–3.
57
Oil in Navigable Waters Act 1922, 12 & 13 Geo 5, c 39; see Pritchard, Oil Pollution Control
(1987) 2–6.
58
Oil Pollution Act 1924 (Public Law 68–238); see Pritchard, Oil Pollution Control (1987) 6–7.
pollution convention of 1954 that the international community made real progress
in this area.59
This convention did include a limited enforcement role for port states by
authorising officials to inspect oil record books,60 a move recognised as a departure
from the normal “principle of international comity according to which States
normally refrain from exercising the local jurisdiction over vessels in their
ports”.61 However, it took disastrous oil spills like the Torrey Canyon in 1967 to
truly drive forward the international community’s agenda in this field, leading to
conventions on civil liability62 and coastal state intervention in 1969, the latter of
which extended to coastal states the power to take preventative action against
threats to their coastline arising from beyond the territorial sea.63 From this time
onwards the negotiation of UNCLOS, and the major IMO-led agreements
(MARPOL, SOLAS, and STCW) saw increased enforcement responsibility
allocated to port states,64 a trend which has continued in relation to more recent
agreements.65 In addition to humanitarian interests, this development reflects the
economic impact substandard shipping has on port states, including costs associated
with search and rescue, oil spill prevention and clean-up equipment, supporting
seafarers and passengers in distress and operational delays.66
The development towards increased port state involvement in the enforcement
of shipping regulations reflects a compromise, perhaps best illustrated in the
provisions of Part XII of UNCLOS, favouring enforcement measures taken in
port, as opposed to those taken at sea against vessels in transit. This compromise
involved flag states accepting more oversight of their vessels by foreign states,
provided this was done quickly and safely within port, as opposed to hindering their
progress (and right of innocent passage) in those states’ maritime zones with riskier
at-sea inspections.67 By the late twentieth century there were enough international
59
International Convention on the Prevention of Pollution of the Sea by Oil (12 May 1954); see
Pritchard, Oil Pollution Control (1987) ch 4.
60
International Convention on the Prevention of Pollution of the Sea by Oil (12 May 1954), art IX.
61
Lowe, “The Enforcement of Marine Pollution Regulations” (1975), 629.
62
International Convention on Civil Liability for Oil Pollution Damage (29 November 1969).
63
International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution
Casualties (29 November 1969), art I.
64
See for examples MARPOL, arts 5 and 6, Annex I, regs 6(4.3) and 11; SOLAS, ch 1, regs
6, 11 and 19; STCW, art X; see Özçayir, Port State Control (2004), paras 3.23–26.
65
See for examples International Convention on Civil Liability for Bunker Oil Pollution Damage
(23 March 2001), art 7(12) and (13); International Convention on the Control of Harmful Anti-
fouling Systems on Ships (5 October 2001), arts 3(1)(c) and 11; International Convention for the
Control and Management of Ships’ Ballast Water and Sediments (13 February 2004), arts 9–11;
International Convention on Liability and Compensation for Damage in Connection with the
Carriage of Hazardous and Noxious Substances by Sea, as amended by the Protocol of 2010
(3 May 1996 and 30 April 2010), art 12(11).
66
SSY Consultancy and Research Ltd, The Cost to Users of Substandard Shipping (2001), 23–24.
67
On the policy compromises between maritime and coastal states under UNCLOS (and during
the negotiating process) see: Lowe, “The Enforcement of Marine Pollution Regulations” (1975),
agreements providing for these inspections that certain port states, primarily in
Europe, began to look towards harmonising their efforts. This led to the so-called
Hague Memorandum of Understanding on Port State Control in 1978,68 which was
then superseded by the Paris Memorandum of Understanding on Port State Control
(Paris MOU) in 1982.
3.1.3 The Rise of Port State Control
Port state control organisations now represent the most visible examples of port
state jurisdiction “in action”. Organised on a regional basis, the memoranda of
understanding69 upon which port state control is based now cover almost every part
of the globe (albeit with varying levels of efficiency in practice).70 Their basic aim
is to harmonise the enforcement of internationally-agreed shipping standards,
simultaneously providing a check on flag states’ performance.71 They achieve
this by inspecting vessels visiting port, assessing them against a long list of
642–643; Legatski, “Port State Jurisdiction over Vessel-Source Marine Pollution” (1977),
466–467; Boyle, “Marine Pollution under the Law of the Sea Convention” (1985), 364; Bernhardt,
“A Schematic Analysis of Vessel-Source Pollution: Prescriptive and Enforcement Regimes in the
Law of the Sea Conference” (1980), 269–270; Kindt, “Vessel-Source Pollution and the Law of the
Sea” (1984), 326; Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution:
UNCLOS III and Beyond” (1991), 739; Stephenson, “Vessel-Source Pollution under the Law of
the Sea Convention: An Analysis of the Enforcement Standards” (1992), 275–276.
68
Memorandum of Understanding between Certain Maritime Authorities on the Maintenance of
Standards on Merchant Ships (2 March 1978); This involved only eight North Sea states, see
Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime (1993),
142 and following.
69
The debate as to whether agreements of this nature are binding international treaties, or merely
informal agreements between the states involved, is not relevant here. See Valenzuela, “Enforcing
Rules against Vessel-Source Degradation of the Marine Environment: Coastal, Flag and Port State
Jurisdiction” (1999), 498; König, “The Enforcement of the International Law of the Sea by Coastal
and Port States” (2002), 8.
70
Europe and Canada: Paris Memorandum of Understanding on Port State Control (26 January
1982); Latin America: Latin American Agreement on Port State Control (5 November 1992) (Viña
del Mar Agreement); Asia-Pacific: Memorandum of Understanding on Port State Control in the
Asia-Pacific Region (1 December 1993) (Tokyo MOU); Caribbean: Memorandum of Understand-
ing on Port State Control in the Caribbean Region (9 February 1996); Mediterranean: Memoran-
dum of Understanding on Port State Control in the Mediterranean Region (11 July 1997); West and
Central Africa: Memorandum of Understanding on Port State Control for the West and Central
African Region (5 June 1998); Indian Ocean: Memorandum of Understanding on Port State
Control for the Indian Ocean Region (22 October 1999); Black Sea: Memorandum of Understand-
ing on Port State Control in the Black Sea Region (7 April 2000); Gulf Region: Riyadah
Memorandum of Understanding on Port State Control in the Gulf Region (30 June 2004). The
United States Coast Guard runs a Port State Control programme covering the waters of the United
States of America, and works closely with the Paris MOU group: see Özçayir, “The Use of Port
State Control in Maritime Industry and Application of the Paris MOU” (2009), 216–217.
71
Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 125 and following.
internationally-agreed standards, and ensuring that any problems are addressed

before the vessel is permitted to move on.72
Most discussions around port State control focus on the Paris MOU, as it is the
instrument upon which the others were based. When it was first implemented,
following the Amoco Cadiz disaster, inspections were limited to issues of vessel
safety, but their scope gradually increased to include matters such as environmental
protection, navigation safety, and living and working conditions.73 At the time of
writing, the Paris MOU involves the enforcement of shipping standards established
under the following IMO and ILO agreements74:
– SOLAS 1974 (99 %)75
– Protocol of 1978 (97 %)
– MARPOL 1973/1978, Annexes I/II (99 %)
– Annex III (98 %)
– Annex IV (90 %)
– Annex V (98 %)
– Protocol of 1997, Annex VI (94 %)
– STCW, 1978 (99 %)
– International Convention on Load Lines, 1966 (99 %)
– Convention on the International Regulations for Preventing Collisions at Sea,
1972 (99 %)
– International Convention on Tonnage Measurement of Ships, 1969 (99 %)
– International Convention on Civil Liability for Oil Pollution Damage 1969
(3 %)76
72
See generally Molenaar, “The EC Directive on Port State Control in Context” (1996); Hare,
“Port State Control: Strong Medicine to Cure a Sick Industry” (1997); König, “Port State Control:
An Assessment of European Practice” (2002); Özçayir, Port State Control (2004).
73
74
Paris MoU, s 2.1. For conventions such as MARPOL which are updated on a regular basis, the
parties will enforce whichever version of the agreement that they have accepted and that is in
force: s 2.3.
75
Percentages refer to IMO figures on the proportion of world shipping tonnage covered by each
convention: International Maritime Organization, Summary of Status of Conventions (6 March
2013). Figures have been rounded to the nearest whole number.
76
This convention has been substantively replaced by its Protocol of 1992. Molenaar notes that the
inclusion of this convention is of particular interest, as the convention itself contains no provisions
on port state control or jurisdiction: Molenaar, “Port State Jurisdiction: Towards Comprehensive,
Mandatory and Global Coverage” (2007), 240.
– International Convention on the Control of Harmful Anti-Fouling Systems on

Ships, 2001 (83 %)
– International Convention on Civil Liability for Bunker Oil Pollution Damage,
2001 (90 %)
– Merchant Shipping (Minimum Standards) Convention, 1976 (56 ratifications)77
– Protocol of 1996 (24 ratifications)
The Paris MoU sets out an inspection target based on a variety of vessel risk
factors as well as flag state performance,78 and facilitates the exchange of inspec-
tion data with other port states in the region.79 If a vessel is found to be substandard
it may be held in port until remedial work can be arranged, and particularly high-
risk vessels may be banned from the region’s ports.80
Port state control is an important and still-developing aspect of international
shipping regulation. It relies on the legal and practical benefits of port state
jurisdiction (as outlined in Chap. 2), complemented by a regional approach which
allows resources and information to be shared. From the port operator’s perspective
there is an additional advantage in knowing that the other operators in the region
have agreed to apply the same standards, so that hopefully no single port will
attempt to undercut the competition by taking a more relaxed approach to enforcing
vessel standards. The vessel operator similarly benefits from a more uniform set of
standards to meet as its vessels travel throughout the region.81
While it is an important consideration in any discussion of shipping regulation
by port states, port state control is not the focus of this book. Port state control is
used to enforce internationally-agreed standards, most of which are widely
accepted throughout the world, whereas this work is concerned with situations in
which states choose to go beyond such standards, and establish and enforce their
own, more stringent shipping regulations. In this context it is important to note that
the various memoranda of understanding typically include a savings clause to the
effect that “[n]othing in the Memorandum will be construed as restricting the
powers of the Authorities to take measures within its jurisdiction in respect of
any matter to which the relevant instruments relate.”82
77
Figures from International Labour Organization, NORMLEX Information System on Interna-
tional Labour Standards, available at http://www.ilo.org.
78
Paris MOU, annexes 7, 8 and 11.
79
Paris MOU, s 5.
80
Paris MOU, ss 3.4 and 4.
81
McDorman, “Regional Port State Control Agreements: Some Issues of International Law”
(2000), 207–209.
82
Paris MOU, s 1.7; a separate clause notes that “The Memorandum is without prejudice to rights
and obligations under any international Agreement or relevant national legislation”; see also
Memorandum of Understanding on Port State Control in the Asia-Pacific Region (1 December
1993), ss 3.2.2 and 8.1; see similarly in the fisheries context Agreement on Port State Measures to
Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (22 November 2009),
art 4(1)(b).
3.2 The Current Scope of Port State Jurisdiction 49
Nonetheless, despite being identified as a mere supplement to flag state efforts,83

the development of port state control is still relevant to the extent that it “marks the
beginning of a process of erosion” of the concept of flag states taking primary
responsibility for the regulation of vessel standards,84 a process that is central to the
conclusions reached in this work. An important illustration of this is the fact that
port state control regimes apply to all vessels, as evidenced by the “no more
favourable treatment” clauses in the conventions being enforced.85 These clauses
recognise that port states have the jurisdiction to apply these laws to foreign-flagged
vessels visiting port, regardless of whether a flag state is party to a particular
convention or not.
3.2 The Current Scope of Port State Jurisdiction
There is a potentially limitless number of policies that port states may devise and
translate into laws impacting upon international shipping. Some of these will be
expressly directed at foreign vessels, while others will have no specifically mari-
time character, but be drafted in such a way that foreign vessels fall within their
scope. This book deals with only a small portion of such measures, namely those in
which states push the boundaries of port state jurisdiction. The aim of the following
section is to provide a broad outline of where those boundaries currently lie. Some
of the issues and considerations discussed apply equally to states acting in their
capacity as coastal states, regulating the passage of vessels through their maritime
zones, and this is indicated where relevant.
3.2.1 Traditional State Interests
As mentioned above, coastal/port states have long been recognised as having

jurisdiction over their territorial sea and internal waters (as these zones are defined
post-UNCLOS) for the purposes of applying and enforcing laws pertaining to
subjects such as health, immigration, revenue and customs, and security.86 These
83
Paris MOU, recitals; Özçayir, Port State Control (2004), 1.
84
Valenzuela, “Enforcing Rules against Vessel-Source Degradation of the Marine Environment:
Coastal, Flag and Port State Jurisdiction” (1999), 499.
85
See for example MARPOL, art 5(4); for discussion see Molenaar, Coastal State Jurisdiction
over Vessel-Source Pollution (1998), 119–121.
86
Taking New Zealand as an example, there are a number of such laws with specific application to
ports and visiting vessels: Health Act 1956, s 96; Food Act 1981, s 24 (customs); Medicines Act
1981, s 72 (customs); Trade in Endangered Species Act 1989 (customs); Biosecurity Act 1993, pt 3
(customs); Maritime Transport Act 1994 (health and security); Customs and Excise Act 1996,
Hazardous Substances and New Organisms Act 1996 (customs and health); Income Tax Act 2007,
can be described as the “traditional” areas of shipping regulation. They relate

principally to who and what goes in and out of a state, and under what conditions.87
In most cases the vessels that bring the goods and persons concerned are not the
primary target of such laws, but rather the things carried within them.88 For
example, when a state applies its public health regulations to a ship carrying an
infectious disease during a port visit, the fact that the unwell are aboard a ship is not
of particular importance. The port is merely a practical point of control to treat the
sick while limiting the risk posed to the interests of the state, principally the health
of those on shore.89 The situation would be different if the state decided to require
all foreign vessels to carry a certain type of sanitation equipment, or employ crew
with a certain level of medical training. In the latter scenario the state has moved
beyond the regulation of its traditional interests and into the regulation of interna-
tional shipping.
In the absence of such examples the kinds of laws discussed here do not involve
the regulation of international shipping, so much as the regulation of separate,
internal interests that are linked to shipping only by reason of the port’s role in the
daily life of the state. Such concerns are inward-looking and domestic in nature,
rather than being centred on matters such as the condition of the vessel in port or its
operations.90 States can still impose innovative and surprising regulations within
any of the policy areas described here, but the discussion of such measures is not
central to issues of international shipping law, and not the focus of this work.
s CV16; Immigration Act 2009. The equivalent United States legislation is referred to in Oliver,
“Legal and Policy Factors Governing the Imposition of Conditions on Access to and Jurisdiction
over Foreign-Flag Vessels in US Ports” (2009), 247–248. A similar list could undoubtedly be
made for any state.
87
See Oliver, “Legal and Policy Factors Governing the Imposition of Conditions on Access to and
Jurisdiction over Foreign-Flag Vessels in US Ports” (2009), 245–258.
88
The principal exception is security regulations, which are more likely to affect the equipment or
operation of vessels than the other topics mentioned. In recent years maritime security has become
more prominent (and harder to classify) as a result of increased international activity in this field:
see Ringbom, The EU Maritime Safety Policy and International Law (2008), 2, 256 f.
220, 314–316; see generally Klein, Mossop and Rothwell, Maritime Security: International Law
and Policy Perspectives from Australia and New Zealand (2010).
89
the Sea (1962), 90–91.
90
Rules relating to the control of maritime traffic within ports, including the allocation of berths
and charging of port fees, arguably provide a limited exception to this description of traditional
interests. Such rules have a long history and may be described as “traditional” for the purposes of
this discussion, even though they involve a limited level of port state jurisdiction being exercised
over foreign shipping. For historical examples see Ashburner, The Rhodian Sea-Law (1909),
cxcviii (medieval Italian states); Hope, A New History of British Shipping (1990), 272 (nineteenth
century England). For more recent examples and discussion see the “Port Traffic Control”
provisions of the Canada Marine Act 1998, ss 56–60; McDougal and Burke, The Public Order
of the Oceans: A Contemporary International Law of the Sea (1962), 96; Hamilton, “Negotiating
Port Access: The Sino-US Opportunity for Leadership in the Maritime Transport Services
Industry” (2002), 155–157.
3.2 The Current Scope of Port State Jurisdiction 51
3.2.2 International Conventions
Of the many aspects of international shipping that a coastal/port state might wish to
regulate, the most common are those falling within the IMO’s remit, namely
“maritime safety, efficiency of navigation and prevention and control of marine
pollution from ships”,91 or within the ILO’s responsibility for working conditions.
In the majority of cases states will be content to work within the IMO or ILO
framework, promoting the development of internationally-agreed standards, and
enforcing them through membership of a port state control organisation. Such an
approach can be regarded as the international norm for the purposes of this
discussion.
The multilateral process gives both maritime and coastal/port states the oppor-
tunity to influence the scope of the resulting regulations, and the pace at which they
are deployed.92 As a result such international standards represent compromises,
with maritime states arguably exercising a dominant role.93 For example, IMO
standards are often regarded as representing a minimum level of protection for the
maritime safety and environmental issues they address,94 but even this represents
an improvement on an unregulated shipping industry. A key advantage is the long-
recognised interest of promoting uniformity in the inherently international shipping
sector, rather than having vessels subject to a “patchwork quilt” of different and
perhaps contradictory laws as they voyage from port to port.95 The inclusion of
in-port enforcement provisions within such instruments then enables port states to
91
Convention on the International Maritime Organization (6 March 1948), art 1(a) (consolidated
version). The IMO’s Maritime Safety Committee is responsible for all matters of maritime safety
including “aids to navigation, construction and equipment of vessels, manning from a safety stand-
point, rules for the prevention of collisions, handling of dangerous cargoes, maritime safety procedures
and requirements, hydrographic information, log-books and navigational records, marine casualty
investigation, salvage and rescue”: art 28. For a summary of international regimes outside of the
IMO’s remit which nonetheless include an element of port state jurisdiction see Molenaar, “Port State
Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 240–241.
92
Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS III
and Beyond” (1991), 726–727.
93
Stephenson, “Vessel-Source Pollution under the Law of the Sea Convention: An Analysis of the
Prescriptive Standards” (1992), 133–134; Tan, “The Regulation of Vessel-Source Marine Pollu-
tion: Reconciling the Maritime and Coastal State Interests” (1997), 360–361.
94
Legatski, “Port State Jurisdiction over Vessel-Source Marine Pollution” (1977), 468–469; Fitch,
“Unilateral Action Versus Universal Evolution of Safety and Environmental Protection Standards
in Maritime Shipping of Hazardous Cargoes” (1979), 145.
95
Fayle, A Short History of the World’s Shipping Industry (1933), 306–307; Brown, “The
Prevention of Marine Pollution by Oil from Ships: Competence to Establish Standards and
Competence to Enforce Standards” (1975), 213–214 (citing a United Kingdom government
position statement); Legatski, “Port State Jurisdiction over Vessel-Source Marine Pollution”
(1977), 467; Fitch, “Unilateral Action Versus Universal Evolution of Safety and Environmental
Protection Standards in Maritime Shipping of Hazardous Cargoes” (1979), 144; Bernhardt,
“A Schematic Analysis of Vessel-Source Pollution: Prescriptive and Enforcement Regimes in
the Law of the Sea Conference” (1980), 268.
act as “trustees” for the international community, investigating foreign vessels and
ensuring that these standards are met.96
However, occasions do arise whereby a coastal/port state wishing to regulate an
aspect of shipping discovers that no relevant international instrument exists, or
perceives a weakness in the scope or enforcement of existing international rules.97
In this position the state may try and achieve regional consensus on the subject,98 or
some other form of international cooperation, although the compromises necessary
might considerably water down its original plan in favour of shipping interests
eager to avoid additional compliance costs. The potentially slow pace of change at
the international level can also be viewed as a disincentive for states wishing to
address immediate concerns.99
Most authors argue that states should ascribe to and assist in the development of
international shipping standards whenever possible, only “going unilateral” when
all other alternatives have failed,100 if at all.101 Nonetheless it is these situations, in
which states consciously go beyond internationally-agreed norms in order to
achieve particular policy objectives, sometimes in the face of international protest,
that provide the clearest examples of the changing nature of jurisdiction over
vessels. As Boyle notes, “Some of the most important developments in the law of
the sea since 1945 have been the product of unilateral actions by a single state or a
small group of states.”102
96
König, “Port State Control: An Assessment of European Practice” (2002), 38–39.
97
See for example Parliament of the Commonwealth of Australia, Ships of Shame: Inquiry into
Ship Safety (1992), paras 1.12 and 4.2; König, “The Enforcement of the Intentional Law of the Sea
by Coastal and Port States” (2002), 10; Ringbom, “Global Problem – Regional Solution? Interna-
tional Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011), 614–615.
98
Action at the EU level is the best example of this type of approach: see Frank, “Consequences of
the Prestige Sinking for European and International Law” (2005). See also Molenaar, Coastal
State Jurisdiction over Vessel-Source Pollution (1998), 117–119.
99
See Parliament of the Commonwealth of Australia, Ships of Shame: Inquiry into Ship Safety
(1992), paras 4.1–4.2.
100
M’Gonigle, “Unilateralism and International Law: The Arctic Waters Pollution Prevention
Act” (1976), 184; Kindt, “Vessel-Source Pollution and the Law of the Sea” (1984), 325–326;
Fitch, “Unilateral Action Versus Universal Evolution of Safety and Environmental Protection
Standards in Maritime Shipping of Hazardous Cargoes” (1979), 169–170; Frank, “Consequences
of the Prestige Sinking for European and International Law” (2005), 10 and 42; Boyle, “EU
Unilateralism and the Law of the Sea” (2006), 31; Ringbom, “Global Problem – Regional
Solution? International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships”
(2011), 641.
101
Vinogradov, “‘Tightening the Regulatory Web’: Issues and Trends in Navigation Regimes”
(1999), 484.
102
Boyle, “EU Unilateralism and the Law of the Sea” (2006), 15; see also Boisson, Safety at Sea:
Policies, Regulations and International Law (1999), ch 9.
3.3 Pushing the Boundaries of Port State Jurisdiction 53
3.2.3 Vessel Safety and the Marine Environment
Most IMO-led international agreements to date have understandably focused on

vessel safety and marine environmental issues. The result is a now sizeable body of
technical regulations, partly enforced through port state control, setting various
standards of vessel construction, design, equipment, crewing and so forth. Safety
and environmental standards are closely connected, as many measures improving
the safety of vessels at sea by extension help prevent the serious environmental
damage that can arise from maritime accidents.103 The dominance of these two
policy areas in the shipping context has meant that some of the most well-known
examples of coastal/port states unilaterally deciding to set their own standards have
been safety or environmental measures, such as the United States’ double hull
requirement for tankers in the wake of the Exxon Valdez disaster.104 More recently
there has been considerable debate over the unilateral introduction of air pollution
regulations, exceeding those found in Annex VI to MARPOL, on the part of the EU
and certain states of the United States.105
Environmental and safety matters are likely to continue to provide controversial
examples of unilateral measures based on port state jurisdiction. However, while
developments in these areas might still push the boundaries of this legal concept, has
decided to focus on other policy areas for the purposes of this work. Part of the reason
for this is that even if maritime states and the shipping industry are strongly opposed
to a particular environmental or safety measure developed by a port state, they are
unlikely to be truly surprised by the subject-matter. The practice of using port state
jurisdiction to introduce stringent safety and environmental policies is relatively well-
established, even while the legal implications of this continue to be debated and
assessed by scholars. This work draws on these discussions while focusing on several
policy areas that have only recently emerged in the form of unilateral port state
measures. By taking this approach the intention is to help demonstrate the evolution
of port state jurisdiction as a whole, instead of singling it out as a regulatory tool used
in the environmental or fisheries context, for example.
3.3 Pushing the Boundaries of Port State Jurisdiction
As noted above, a coastal/port state that considers the current level of international
shipping regulation to be inadequate in a particular area may decide to introduce its
own laws. This decision gives rise to a number of different considerations,
103
See Marten, “The Enforcement of Shipping Standards under UNCLOS” (2011), 52–53.
104
Oil Pollution Act 1990; 46 USC 3703a.
105
See generally Moren, “Ninth Circuit Prevents California from Regulating Toxic Maritime
Emissions” (2008); Goldsworthy, “Exhaust Emissions from Ship Engines: Significance,
Regulations, Control Technologies” (2010); Ringbom, “Global Problem – Regional Solution?
International Law Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011).
including whether the measure is in alignment with the state’s other policy
objectives, and whether it would best be introduced by way of port state jurisdic-
tion, or as an exercise of coastal state jurisdiction more generally. Finally a decision
must be made as to which aspects of a ship and its operations the regulation will
target.
3.3.1 Is the Measure Worth the Costs?
For any coastal/port state contemplating a new regulation affecting international

shipping, considerations arise as to whether the measure will be beneficial to the
state’s interests in the long term.106 First, the measure might damage the state’s
international relations if it is seen as too intrusive vis-à-vis the rights of other states.
Second, it can safely be assumed that vessel owners will not enjoy incurring
additional costs in order to comply with the proposed measure which, in the case
of CDEM standards in particular, can be significant, requiring extensive fleet refits
or even the scrapping of older vessels.107
The reaction of shipowners and other commercial players is especially signifi-
cant in the port state context, given the state’s economic interest in its port
facilities.108 New regulatory standards might result in higher freight prices for
economic actors within the port state’s economy, impacting on international com-
petitiveness.109 In other cases a vessel operator, aware that no neighbouring state
will be making similar demands, may decide that it would be more profitable to
simply stop visiting the affected ports.110 Unless the port state is economically
powerful enough to impose the measure and still have a sufficient number of vessels
whose owners’ best option is to comply and keep trading through those ports, it may
have to reconsider its approach.
106
Legatski, “Port State Jurisdiction over Vessel-Source Marine Pollution” (1977), 473;
Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage”
(2007), 226.
107
Legatski, “Port State Jurisdiction over Vessel-Source Marine Pollution” (1977), 460–461;
Bernhardt, “A Schematic Analysis of Vessel-Source Pollution: Prescriptive and Enforcement
Regimes in the Law of the Sea Conference” (1980), 268. See for example the impact of the
introduction of MARPOL and SOLAS on British tanker fleets: Hope, A New History of British
Shipping (1990), 449–450.
108
See Tan, “The Regulation of Vessel-Source Marine Pollution: Reconciling the Maritime and
Coastal State Interests” (1997), 374–376.
109
Standards in Maritime Shipping of Hazardous Cargoes” (1979), 144–145, 167–168 and 170;
Ringbom, “Preventing Pollution from Ships: Reflections on the ‘Adequacy’ of Existing Rules”
(1999), 22. The Australian Parliament was warned of this effect during an inquiry into shipping
safety, but rejected it as mere assertion when no appropriate evidence was produced: Parliament of
the Commonwealth of Australia, Ships of Shame: Inquiry into Ship Safety (1992), para 4.24.
110
See Branch, Elements of Shipping (2007), 393–396; Talley, Port Economics (2009), 66.
This demonstrates the conflicting motivations that states have in relation to their
maritime ports. On the one hand there are strong economic interests in having
foreign vessels trading there, combined with the related interest in preserving
freedom of communication throughout the world.111 On the other hand are the
competing interests of the state’s national security, environmental well-being, and
the humanitarian desire to promote safety and quality in shipping.
The port state’s approach may even differ depending on the type of ports the
state in question has. A country that is principally concerned with exporting highly
sought-after goods may have a different outlook in terms of shipping from a state
with large container operations feeding out to smaller ports.112 Some states may
even implement stricter conditions in the hope of benefiting their domestic shipping
industry, for example by giving their shipbuilding sector a head start against
offshore rivals.113 States must therefore balance the benefits that a new initiative
will have with the potential impacts on its trade competitiveness.
Finally, there is the risk of receiving a dose of one’s own medicine: “The
authority of the port state has also been limited by the reasonable expectation that
excessive measures by port states would result in retaliatory measures by other
states.”114
As a result it is unsurprising that the most ambitious unilateral port state
initiatives have been undertaken by the economically powerful United States and
EU, both of which command a large number of ports strategically essential to world
trade.115 For example, the EU has in the past been accused by the IMO Secretary-
General of undermining the IMO by implementing its own standards in a form of
“regional unilateralism”.116 However, as Ringbom notes, the IMO enjoys no
monopoly on shipping regulation, and if member states are dissatisfied with prog-
ress at an international level they are welcome to begin developing domestic
standards.117 In some cases a state can use a regulation that begins life as a
unilateral measure (or even the mere threat of such a regulation) as a catalyst for
changes to the international regime, eventually bringing the IMO and other
111
Degan, “Internal Waters” (1986), 7.
112
See generally Talley, Port Economics (2009), ch 3.
113
Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Cover-
age” (2007), 226.
114
Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime (1993), 21;
See also Burke, Legatski and Woodhead, National and International Law Enforcement in the
Ocean (1975), 88; König, “Port State Control: An Assessment of European Practice” (2002), 52;
Boyle, “EU Unilateralism and the Law of the Sea” (2006), 20.
115
116
117
Ringbom, The EU Maritime Safety Policy and International Law (2008), 235; see also
Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU CO2
Emissions Trading Scheme for Ships” (2011), 614–615.
countries into line with its approach.118 In this regard the reaction of other states to
the measure is crucial: “such action is only effective if others also follow the
lead”.119
The flip-side of unilateral action is that for any improvements made in the
quality of shipping for the port state in question, another state or region is likely
to be blighted, even if temporarily, with the undesirable ships that the former has
turned away.120 One example is the increase in dangerous bulk carriers leaving the
Australian and Canadian trades for Europe in the 1990s after those two countries
stepped up their port state control measures.121 Another undesirable outcome is that
a port state with high standards may become a scrapyard, burdened with vessels
whose owners were not able to afford the required repairs or upgrades, or who
simply decided to abandon the vessel to its fate.122
3.3.2 Coastal State Jurisdiction Versus Port State

Jurisdiction
Having decided that a new shipping regulation is worth pursuing, a coastal/port

state must then decide upon the scope of the proposed measure, making it necessary
to evaluate the factors favouring action in a port state capacity (i.e. regulating
only vessels that enter port), as opposed to action in a coastal state capacity
(i.e. regulating vessels passing through the state’s maritime zones, including
those that do not visit a local port). Many maritime matters are best governed by
the broad use of coastal state jurisdiction, whereas others should be implemented
exclusively by way of the port state jurisdiction for legal and policy reasons.
Chapter 2 outlined the advantages of port state jurisdiction over coastal state
jurisdiction in a legal sense, concluding that these advantages relate primarily to the
limitations imposed on the regulation of vessels in the territorial sea and EEZ.
Article 21 of UNCLOS is particularly important in this regard, as it limits coastal
state regulation over vessels engaged in innocent passage through the territorial sea
to a few specific topics (principally navigation safety and environmental matters). It
118
Standards in Maritime Shipping of Hazardous Cargoes” (1979), 170; Clingan, “Vessel-Source
Pollution, Problems of Hazardous Cargo, and Port State Jurisdiction” (1988), 277 (example of
United States passenger vessel fire safety requirements); Valenzuela, “Enforcing Rules against
Vessel-Source Degradation of the Marine Environment: Coastal, Flag and Port State Jurisdiction”
(1999), 503; Frank, “Consequences of the Prestige Sinking for European and International Law”
(2005), 24–25; Boyle, “EU Unilateralism and the Law of the Sea” (2006), 16–17.
119
Boyle, “EU Unilateralism and the Law of the Sea” (2006), 16.
120
Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 531; Frank,
“Consequences of the Prestige Sinking for European and International Law” (2005), 63.
121
Salvarani, “The EC Directive on Port State Control: A Policy Statement” (1996), 229.
122
Salvarani, “The EC Directive on Port State Control: A Policy Statement” (1996), 230.
also limits any regulation of a vessel’s CDEM standards to laws based on generally
agreed international rules and standards (GAIRS),123 such as those established by
SOLAS or MARPOL. Of similar relevance is article 56 of UNCLOS, setting out
coastal states’ more limited rights in the EEZ.
Prospective legislators, when considering the scope of a new shipping regula-
tion, can point not only to the absence of such legal restrictions but also to certain
policy factors in favour of port state jurisdiction. By limiting the application and
enforcement of its laws to those vessels visiting its ports, a state does not threaten to
hamper the innocent passage of foreign vessels, giving vessel operators the oppor-
tunity to simply stop visiting its ports instead of complying with any new rules. By
contrast, rules applied to vessels in transit through a coastal state’s maritime zones
require the policing of a much larger geographical area, and may need to be
enforced by way of at-sea inspections, adding risk and expense. Accordingly,
measures based solely on port state jurisdiction are less of a constraint on interna-
tional shipping, and should face less opposition from the international community
and the shipping industry.
In other situations states are better placed to regulate in their coastal state
capacity, applying their laws to vessels engaged in passage through their maritime
zones. The ability to do so is largely determined by UNCLOS, which is quite
detailed in relation to coastal state (as opposed to port state) jurisdiction, generally
by reference to the subject-matter a state can address in its various maritime zones.
The environment, navigation safety, and traditional state interests such as customs
and health are all permitted policy areas for coastal state regulation to varying
degrees.124 For example, when establishing controlled sea lanes and other naviga-
tion zones, or responding to pollutant discharges, the coastal state is permitted to
apply and enforce its laws over vessels passing through its territorial sea or EEZ,
despite the vessel’s navigational freedoms.125 In addition, any international
standards that achieve the status of GAIRS can be applied to and enforced in a
state’s territorial sea under article 21 of UNCLOS, even in the case of CDEM
standards (notwithstanding that in practice such matters will usually be addressed
by way of port state control).
Despite the legal and policy advantages of port state jurisdiction as compared
with coastal state jurisdiction the line between these two concepts is often blurred,
making it difficult to categorise some pieces of legislation as exclusively “port” or
123
The debate over the precise meaning and impact of this term, as well as related concepts in
UNCLOS such as “applicable international rules and standards”, is not relevant to this discussion.
For discussion of these issues see: Boyle, “Marine Pollution under the Law of the Sea Convention”
(1985), 355–357; Churchill and Lowe, The Law of the Sea (1999), 346–347; Committee on Coastal
State Jurisdiction relating to Marine Pollution, “Final Report” (2000), 473–484; Vukas, The Law of
the Sea: Selected Writings (2004), ch 3.
124
For the regulation of traditional interests see UNCLOS, arts 19(2)(g), 21(1)(h) (territorial sea),
33 (contiguous zone), 42(1)(d) (international straits) and 60(2) (EEZ in relation to artificial
structures).
125
UNCLOS, arts 21 and 56.
“coastal” in scope.126 A careful state might simply apply its legislation to vessels
visiting its ports, but include a reference to vessels in the territorial sea that are not
engaged in innocent passage for some reason.127 A less cautious state might assert
that its law applies to all vessels within its internal waters and territorial sea, but in
practice take enforcement action only in respect of those vessels that enter its
ports.128
3.3.3 What to Target?
Having decided that its policy is worth pursuing, and whether to apply it in its port
and/or coastal state capacity, a further decision confronting the prospective legisla-
tor is to determine what aspects of a ship and its operations the regulation should
target. For example, the state’s policy may be to improve the welfare of live animals
on foreign vessels. As the measures the state is proposing cannot be applied to
vessels with a right to innocent passage in the territorial sea under article 21 of
UNCLOS, or in the EEZ, the decision is made to base the necessary legislation on
port state jurisdiction. A choice must now be made between different regulatory
approaches, such as: introducing a certain standard of accommodation for such
animals; requiring a certain level of care during the voyage; or forcing the vessel’s
owners to maintain a searchable public register of all animal deaths on their vessels.
The state may choose from among these three options with the same policy goal in
mind, but each may have different implications under international law.
In order to distinguish between and discuss shipping regulations in the legal
context, this book adopts a framework of three categories. These build upon the
work of Ringbom in particular, who focused on the different treatment of static and
non-static vessel conditions under international law.129 The categories represent the
three aspects of a shipping operation targeted by the vast bulk of shipping
regulations relevant in the port state context:
126
See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 103. Legislation
that pre-dates UNCLOS is understandably difficult to categorise, as states may have applied
legislation to whatever breadth of territorial sea they claimed without being able to incorporate
the maritime zones and limits on jurisdiction the Convention provides.
127
See for example Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for
maritime claims, art 4(2).
128
See for example Australia’s approach to enforcing its compulsory Torres Strait pilotage
regime: Chap. 4, Sect. 4.4.6.3. See further the Canadian legislation discussed in Vanderzwaag,
“Canadian Struggles with Freedoms of Navigation and Fisheries: A Short ‘Legal Cruise’” (2010),
30–40.
129
See Ringbom, The EU Maritime Safety Policy and International Law (2008), 376–377;
Emissions Trading Scheme for Ships” (2011), 621–623. The labels “vessel conditions” and “vessel
operations” are used here to describe the equivalent categories.
– Vessel conditions (the condition of the vessel and its equipment)

– Vessel operations (how the vessel is operated)
– Vessel administration (organisational arrangements relating to the vessel)
Each piece of legislation based on port state jurisdiction will include provisions
falling within one or more of these categories.
Legislative provisions that fall within a particular category will share certain
practical characteristics in terms of the shipping-related matters they target, which
in turn impact upon the provision’s status under international law. Beyond this the
categories are intended as no more than a framework for discussion; a useful tool
through which to explore certain common issues arising within an enormous
spectrum of national shipping laws. The practical characteristics particular to
each category are outlined below, while the legal implications are discussed in
the chapters which follow.
In limiting the discussion in this book to the regulation of merchant shipping, an
important distinction must be made between the regulation of the shipping operation
itself and regulation of the things that happen to be carried by the vessel when it arrives
in port (i.e. people and cargo). There are a virtually limitless number of subjects upon
which regulations targeting the latter can be enacted.130 Nonetheless, such laws are
often connected with the “traditional” policy areas discussed above, such as customs
and quarantine laws,131 under which states are attempting to control the people and
goods passing through their borders. The legal issues arising from such laws do not
always overlap with the issues relevant to shipping. For example, disputes concerning
jurisdiction over crimes committed aboard vessels involve principles of international
law relating to natural persons such as nationality and passive personality,132 and are
dealt with under a separate article of UNCLOS.133 Regulations of this kind are not the
focus of this discussion as they bear only a circumstantial connection to the regulation
of international shipping.134 Instead this book focuses on the regulation of vessels, and
the crews and organisations that operate them.
3.3.3.1 Vessel Conditions
This category encompasses laws regulating the condition of a vessel at the time it
arrives in port. Vessel conditions are perhaps the most recognisable shipping
standards, as they generally concern some aspect of the vessel’s construction or
130
the Sea (1962), 94.
131
See for example UNCLOS arts 19(2)(g) and 33(1).
132
See Chap. 4, Sect. 4.1.2.1.
133
UNCLOS, art 27.
134
See Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927),
219 (distinguishing between jurisdiction over foreign ships in port and jurisdiction over the
commodities aboard them).
equipment,135 comparable with specification standards found in other areas of

industry regulation.136 The requirement to carry lifesaving apparatus on board,137
to construct watertight bulkheads to a certain standard,138 or to use a certain quality
of fuel139 all fall within this category. Elements of vessel crewing are also covered,
principally those which focus on the crew’s qualifications.140 The common factor of
such conditions is that they are essentially static. They do not tend to change during
a vessel’s voyage, but instead “follow” the vessel into port, where they can be
assessed against the port state’s requirements.141
Vessel conditions can be distinguished from the CDEM standards concept found
in UNCLOS142 on the basis that the former describes a category of regulations with
common jurisdictional ramifications, while the latter refers to the substantive
content of some shipping regulations.143 Ringbom notes that144:
The two terms usually converge, as CDEM rules are typically of a ‘static’ nature. However,
since this is not necessarily always the case, it is deemed appropriate to use a separate term
when referring to the jurisdictional features of such standards. It is, for example, not clear if
a requirement to have a certain type of anti-fouling paint on a ship’s hull could be regarded
as representing a CDEM requirement in a substantive sense. Yet it is no doubt a ‘static’
measure for jurisdictional purposes, in that a violation of the requirement is continuous in
nature, not linked to a particular geographical place, and therefore (also) takes place within
the port State’s territorial jurisdiction.
To add to the example provided, the requirement under STCW that a particular
level of lookout be kept is not a static vessel condition, but undoubtedly related to a
vessel’s manning.145
135
See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 102; Ringbom,
The EU Maritime Safety Policy and International Law (2008), 337 and following; Ringbom,
“Global Problem – Regional Solution? International Law Reflections on an EU CO2 Emissions
Trading Scheme for Ships” (2011), 621–622.
136
Baldwin and Cave, Understanding Regulation: Theory, Strategy, and Practice (1999), 119.
137
SOLAS, ch III, regs 7 and 21.
138
SOLAS, ch II-1, reg 10.
139
MARPOL, annex VI, reg 14.
140
See for example STCW, annex, reg II/2.
141
age” (2007), 230.
142
Construction, design, equipment and manning. See for example UNCLOS, art 21.
143
Ringbom, The EU Maritime Safety Policy and International Law (2008), 329. Compare for
example Bodansky, “Protecting the Marine Environment from Vessel-Source Pollution: UNCLOS
III and Beyond” (1991), 729–730 where the two concepts are conflated.
144
145
STCW, annex, reg VIII/2.
3.3.3.2 Vessel Operations
This category encompasses laws regulating activities, events, or conduct that may or
may not occur while a vessel is being operated.146 In regulatory terms they can be seen
as performance or output standards, demanding a given level of delivery.147 The label
of “non-static vessel conditions” would be more technically accurate, as there are
some relevant events that do not fall comfortably within the description of a vessel’s
day-to-day operations. Accidental pollutant discharges provide a notable example.148
In some situations legislation will regulate both vessel conditions and vessel
operations in close connection, with one part focusing on the kind of machinery or
other physical elements with which a vessel must be fitted, while another part
regulates how those same elements must be operated.149 Other examples concern
the actions of the crew themselves, such as the number of hours they are working.
The common factors are that: first, such actions may or may not happen during the
course of a voyage. A vessel might fail to use a designated shipping lane, fail to take
on a pilot, or a crew might be overworked. Second, if they do occur the conduct or
operations in question might eventuate anywhere, including on the high seas or in
another state’s maritime zones.150
As a result of this second factor, questions of extraterritorial jurisdiction are
inherently bound up in any decision by a port state to regulate vessel operations.151
In the era of UNCLOS the position of a port state trying to regulate vessel
operations is much more complex under international law than in the case of vessel
conditions, where the relevant offence can be deemed to have occurred in port.
While a coastal state is expected to apply and enforce conduct-related laws over its
own maritime zones to address obvious safety matters such as the use of sea lanes, it
is unusual for it to extend its authority outside the matters provided for in UNCLOS.
146
See Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global
Coverage” (2007), 230; Ringbom, The EU Maritime Safety Policy and International Law
(2008), 355 and following; Ringbom, “Global Problem – Regional Solution? International Law
Reflections on an EU CO2 Emissions Trading Scheme for Ships” (2011), 623.
147
Baldwin and Cave, Understanding Regulation: Theory, Strategy, and Practice (1999),
119–120. For a comparison with specification standards see Ogus, Regulation: Legal Form and
Economic Theory (1994), 150–152.
148
In his analysis of the EU’s use of port state jurisdiction, Ringbom discusses the regulation of
pollutant discharges from vessels as a standalone category based on the extended form of port state
jurisdiction found in article 218 of UNCLOS: Ringbom, The EU Maritime Safety Policy and
International Law (2008), 376. However, the three categories discussed here are being used to
describe the common practical elements of various shipping regulations, and for this purpose the
subject-matter of such laws falls within the scope of vessel operations.
149
See for example SOLAS ch III on life-saving appliances and arrangements, which contains
detailed requirements not only for the kind of equipment a vessel should be carrying, but also
comments on how it must be able to be operated in emergencies.
150
Emissions Trading Scheme for Ships” (2011), 623.
151
See Chap. 4, Sect. 4.4.
The most ambitious examples of this form of regulation involve the port state
effectively claiming that the vessel must (or must not) be operated in a certain way
when travelling to or from port. This arguably conflicts with the right of a vessel’s
operator to do as he wishes when outside the maritime zones of coastal states, based
on the concept of freedom of navigation, and the exclusive jurisdiction of the flag
state on the high seas.152
3.3.3.3 Vessel Administration
This category encompasses laws regulating the organisational arrangements affect-

ing the vessel. Such laws will focus not on the vessel’s equipment or how it is
operated, but instead be directed at the vessel’s owners. They may include rules
affecting the insurance, management, ownership, and crew employment
arrangements that underpin the vessel’s trading operations. However, to fall within
this category such rules must still be shipping-related regulations, as opposed to
rules affecting commercial contracts that the vessel owner enters into,153 or rules
affecting foreign companies more generally such as competition laws. There must
still be a connection to the vessel.
To date the primary examples of vessel administration measures are interna-
tional and domestic compulsory insurance regimes closely linked to environmental
risks, such as those under the oil and bunker pollution conventions, or the carriage
of passengers.154 However, as port states grow more confident in the exercise of
their jurisdiction more examples may arise.
3.3.4 Summary
The use of port state jurisdiction, as a concept distinguishable from coastal state
jurisdiction more generally, continues to grow. The port state’s position of regu-
latory strength under international law, particularly when compared with the coastal
state’s limited ability to regulate vessels, and the policy advantages of using ports as
points of control, makes such measures an attractive option. Despite the political
risks and potential threats to trade competitiveness, occasions continue to arise in
which a state decides to enact new shipping regulations based on its port state
jurisdiction, in a manner that goes beyond anything currently agreed to at the
international level. It is these examples of unilateral regulations, in which states
push the boundaries of port state jurisdiction, that provide the focus of this work.
152
UNCLOS, art 92(1).
153
See for example the United States regulation affecting exclusion clauses for contracts of
carriage analysed in Knott v Botany Mills 179 US 69 (1900) (SC).
154
Chapter 4
Port States Taking Charge: The United
States’ Cruise Vessel Security and Safety
Act 2010
This chapter discusses a number of key legal issues involving port state jurisdiction,
including certain extraterritorial implications and the concept of port entry
conditions. Examples drawn from the United States’ Cruise Vessel Security and
Safety Act 2010 (the Act)1 are used to illustrate these issues.
4.1 Background to the Act
4.1.1 Legislative Background and Industry Response
The Act arose as the result of an ongoing campaign by the International Cruise
Victims Association, a United States-based voluntary organisation that promotes
the safety and security of cruise ship passengers,2 based on concerns over crime
aboard cruise vessels. These included instances of cruise lines failing to pursue
allegations of rape made by passengers against crew members, or failing to coop-
erate fully with Federal Bureau of Investigation (FBI) investigations into such
events. Other instances included persons going missing from cruises without the
cruise line being aware of the disappearance, and cruise lines failing to respond
adequately to the families of missing persons who raised questions in the aftermath
of such events.3
1
The Act has been codified at 46 USC 3507–3508.
2
www.internationalcruisevictims.org. See especially Subcommittee on Coast Guard and Maritime
Transportation of the Committee on Transportation and Infrastructure, United States House of
Representatives, Crimes Against Americans on Cruise Ships (2007), 6–7 (statement of Represen-
tative Doris Matsui).
3
See Subcommittee on Coast Guard and Maritime Transportation of the Committee on Transpor-
tation and Infrastructure, United States House of Representatives, Crimes Against Americans on
Cruise Ships (2007), 100 and following (evidence of International Cruise Victims Association);

64 4 Port States Taking Charge: The United States’ Cruise Vessel Security. . .
In March 2007 the Coast Guard and Maritime Transportation Subcommittee of

the United States Congress’ Transportation and Infrastructure Committee began a
review of “the laws and regulations relating to the reporting, investigation and
prosecution of crimes and accidents that occur aboard cruise vessels”,4 and held two
hearings on these matters.5 These hearings revealed that the FBI had opened only
184 files in relation to crimes on board cruise ships between 2002 and 2007.6 The
concern was that instead of suggesting crime aboard cruise ships was rare this figure
under-represented the problem, as there was not always a legal obligation on cruise
lines to report crimes involving a United States national, even though the United
States might have a claim to jurisdiction in such a case if the authorities were made
aware of the occurrence.7 Other issues raised included the lack of crime scene
preservation expertise on board cruise ships, and the lack of information and
support given to victims of crime.8 Although they were careful to insist that taking
a cruise is in general a very safe way to holiday, the industry witnesses at the
hearing were generally receptive to the criticisms raised.9
The importance of jurisdictional issues in relation to the matters being addressed
was made clear from the outset. Senator Kerry, introducing a (later superseded) bill
see also Wyatt, “High Crimes on the High Seas: Re-Evaluating Cruise Line Legal Liability”
(2007–2008), 155–165.
4
Coast Guard and Maritime Transportation Subcommittee, Transportation and Infrastructure
Committee, United States Congress, Rep. LaTourette’s Statement from Today’s Hearing on Cruise
Ship Crime (press release, 27 March 2007). A disconcerting number of such cases are cited in
Dickerson, “The Cruise Passenger’s Dilemma: Twenty-First-Century Ships, Nineteenth-Century
Rights” (2004), 457–464.
5
Subcommittee on Coast Guard and Maritime Transportation of the Committee on Transportation
and Infrastructure, United States House of Representatives, Crimes Against Americans on Cruise
Ships (2007); Subcommittee on Coast Guard and Maritime Transportation of the Committee on
Transportation and Infrastructure, United States House of Representatives, Cruise Ship Security
Practices and Procedures (2007).
6
Ships (2007), 12. Of these, 84 had involved a crew member as a suspect. A further 18 files were
opened in the months which followed after a voluntary reporting scheme was adopted by the cruise
industry: Subcommittee on Coast Guard and Maritime Transportation of the Committee on
Transportation and Infrastructure, United States House of Representatives, Cruise Ship Security
Practices and Procedures (2007), 2.
7
Ships (2007), vi-ix; see 33 CFR 120.220.
8
Ships (2007), 24 and 41–42.
9
See for example Subcommittee on Coast Guard and Maritime Transportation of the Committee
on Transportation and Infrastructure, United States House of Representatives, Crimes Against
Americans on Cruise Ships (2007), 48 and following (evidence of CLIA).
4.1 Background to the Act 65
in June 200810 remarked that “[m]urky legal jurisdictions in international waters are
no longer an excuse for failing to report serious crimes so that they may be
effectively prosecuted”11 A second bill (again superseded) was introduced in
March 2009,12 and greeted with cautious support from the Cruise Lines Interna-
tional Association (CLIA), the principal industry body for cruise ship operators.13
It was not until July 2009 that the bill that would succeed in becoming law was
introduced,14 and later that year reports were delivered by committees in both the
Senate and House of Representatives. In terms of the jurisdictional issues at stake,
the focus was on the potential for overlapping jurisdiction in relation to crimes that
occur at sea.15 However, the importance of port state jurisdiction was also acknowl-
edged, with the report referring to the possibility of port entry conditions as a means
of applying United States law to foreign vessels.16 It took the bill 1 year from its
introduction to be passed (unanimously by the Senate),17 and signed into law by the
President on 27 July 2010.18 CLIA once again indicated its support for the legisla-
tion,19 although one P&I club suggested that the Act had received mixed reactions
10
Cruise Vessel Security and Safety Act 2008 (Senate Bill 110-3204); see also Cruise Vessel
Security and Safety Act 2008 (House of Representatives Bill 110-6408).
11
Kerry, United States Senator for Massachusetts, Kerry Introduces Legislation to Protect
Passengers on Cruise Ships (press release, 26 June 2008); see also Coast Guard and Maritime
Transportation Subcommittee, Transportation and Infrastructure Committee, United States Con-
gress, Rep. LaTourette’s Statement from Today’s Hearing on Cruise Ship Crime (press release,
27 March 2007).
12
Cruise Vessel Security and Safety Act 2009 (Senate Bill 111-588); see also Cruise Vessel
Security and Safety Act 2009 (House of Representatives Bill 111-1485).
13
Cruise Lines International Association, Cruise Lines International Association Statement on the
Introduction of the Cruise Vessel Security and Safety Act of 2009 (press release, 8 July 2009).
14
Cruise Vessel Security and Safety Act 2010 (House of Representatives Bill 111-3360).
15
See Committee on Commerce, Science, and Transportation, United States Senate, Cruise Vessel
Safety and Security Act of 2009: Report of the Committee on Commerce, Science, and Transpor-
tation on S. 588 (8 September 2009), 1; Committee on Transport and Infrastructure, United States
House of Representatives, Cruise Vessel Security and Safety Act of 2009: Report to accompany
H.R. 3360 (7 November 2009), 2.
16
Committee on Commerce, Science, and Transportation, United States Senate, Cruise Vessel
Safety and Security Act of 2009: Report of the Committee on Commerce, Science, and Transpor-
tation on S. 588 (8 September 2009), 2.
17
United States Senate, “Cruise Vessel Security and Safety Act of 2010” (10 June 2010),
pp S4865–S4866.
18
See generally Kerry, United States Senator for Massachusetts, Senate Unanimously Passes
Kerry Cruise Ship Safety Legislation (press release, 11 June 2010); see also Kerry, United States
Senator for Massachusetts, President Signs Kerry Cruise Ships Safety Bill Into Law (press release,
27 July 2010).
19
Cruise Lines International Association, “CLIA Statement on Congressional Passage of the
Cruise Vessel Security and Safety Act” (15 July 2010).
from cruise lines,20 and that some viewed the legislation as a disproportionate
response to the problem of crime on cruise ships.21
4.1.2 Scope of the Act
The Act’s recitals indicate the diverse range of issues that it was intended to
address, including:
– the need to gather information on the amount and type of crime aboard cruise
vessels;
– the need for United States law enforcement authorities to be notified following a
crime;
– the importance of securing crime scenes to allow efficient investigations; and
– the threat of piracy.
These concerns are addressed by imposing an equally diverse group of
requirements on passenger vessels22 of at least 100 gross tons,23 authorised to
carry at least 250 passengers, with on-board sleeping facilities for each passenger.24
The provisions of the Act place responsibility for compliance on the vessel owner, a
term which is broadly defined to include the vessel’s “owner, charterer, managing
operator, master, or other individual in charge of a vessel”.25 A person who violates
part of the Act may be fined up to US$50,000 by way of a civil penalty, whereas a
wilful violation may face a criminal penalty of up to US$250,000, and imprison-
ment for up to 1 year.26 The Act contains examples of regulations falling within
each of the three categories of regulation discussed in Chap. 3.
4.1.2.1 Crime-Related Provisions
A number of the Act’s provisions relate to how crime is dealt with on board cruise
ships, and may be distinguished from those provisions dealing with the equipment a
20
For example, the cruise industry did not agree that higher deck railings were required: Subcom-
mittee on Coast Guard and Maritime Transportation of the Committee on Transportation and
Infrastructure, United States House of Representatives, Cruise Ship Security Practices and
Procedures (2007), 140 and 152.
21
Steamship Mutual P&I Club, US – The Cruise Vessel Security and Safety Act 2010 (January
2011), available at www.simsl.com.
22
Although the Act applies to passenger vessels of any kind, this chapter generally employs the
term “cruise ship” to reflect the background to the Act.
23
See 46 USC 2101(22).
24
46 USC 3507(k).
25
46 USC 3507(l)(2).
26
46 USC 3507(h)(1).
vessel must carry and how the vessel must be operated for the purposes of this
discussion. Natural persons are viewed differently from vessels under international
law, especially as factors such as the nationality of the offender/victim come into
play.27 As a result, jurisdiction over shipboard crimes is potentially more extensive
than jurisdiction over vessels themselves. For example, a state might argue that it
has a claim to jurisdiction over an assault on the high seas on the grounds of the
victim’s nationality,28 even while acknowledging the primacy of the flag state’s
authority on the high seas in other respects.29
Distinguishing these crime-related provisions from specifically shipping-
focused regulations is important in the context of the Act, because the jurisdiction
asserted by the United States in relation to crimes on board vessels is quite
extensive in its extraterritorial reach. The provisions of United States law regarding
its “special maritime and territorial jurisdiction” in criminal matters apply to “any
foreign vessel during a voyage having a scheduled departure from or arrival in the
United States with respect to an offense committed by or against a national of the
United States,” to the extent permitted by international law.30 The crime-related
provisions that found their way into the Act support this special jurisdiction by
strengthening the United States’ ability to investigate and prosecute those crimes
falling within its scope.31 For example, the Act introduces requirements for evi-
dence collection and assistance following sexual assaults aboard cruise ships,32 as
well as an extensive crime reporting obligation.33
As these issues relate to matters far removed from shipping itself, the distinction
between the extent of a state’s jurisdiction over a shipboard crime, and its ability to
exercise jurisdiction over those in charge of the vessel to get them to report the
crime and preserve evidence, is not relevant to this discussion.34 Nor is it the place
of this work to determine whether the crime-related provisions of the Act represent
an excessive claim in relation to the United States’ jurisdiction over criminal
27
28
See for example United States v Roberts 1 F Supp 2d 601 (1998) (DC, East Louisiana).
29
UNCLOS, art 92. Of course, the extent to which this deference continues to hold true is one of
the main themes of this book, and is returned to below in the context of regulations with
extraterritorial effect.
30
18 USC 7(8); see for example United States v Roberts 1 F Supp 2d 601 (1998) (DC, East
Louisiana) (crime on the high seas against a United States citizen by a foreign national serving on a
foreign-flagged vessel).
31
See Subcommittee on Coast Guard and Maritime Transportation of the Committee on Trans-
portation and Infrastructure, United States House of Representatives, Crimes Against Americans
on Cruise Ships (2007), pp vi-ix.
32
46 USC 3507(d).
33
This includes the keeping of a log book detailing complaints of crimes, which must be made
available to any law enforcement official: 46 USC 3507(g).
34
Such a distinction was referred to in testimony given on behalf of the United States Coast Guard:
see Subcommittee on Coast Guard and Maritime Transportation of the Committee on Transporta-
tion and Infrastructure, United States House of Representatives, Cruise Ship Security Practices
and Procedures (2007), p 215.
matters. However, it is unfortunate that the drafting of the Act appears to conflate
the United States’ extensive claim to jurisdiction over crimes, with its jurisdiction
over the condition and operation of foreign vessels. This issue is discussed in more
detail below.
4.1.2.2 Vessel Conditions
The first set of requirements imposed by the Act involve vessel design, equipment
and crewing measures aimed at improving safety, as well as assisting with the
prevention and investigation of crime. These require that:
– the ship’s rails must be at least 42 in. (1.07 m) above the cabin deck,35 and
technology installed to capture images or detect passengers who have fallen
overboard “to the extent that such technology is available”36;
– acoustic hailing/warning devices be available to provide communication around
the vessel37;
– the door to each passenger and crew cabin must be equipped with a peephole or
other means of visual identification,38 and on vessels constructed after July 2010
there must also be security latches and “time-sensitive key technology”39;
– procedures regarding the access by crew members to passengers’ staterooms be
developed40;
– a video surveillance system must be installed in order to record evidence of
crimes41;
– various crime- and safety-related information and contacts be made available to
all passengers42;
– the ship carry medicine and medical equipment for dealing with sexual assaults,
as well as appropriately qualified medical staff43; and
35
46 USC 3507(a)(1)(A). The pre-existing standard for passenger vessels was at least 39.5 in.
(1 m): 46 CFR 72.40.
36
46 USC 3507(a)(1)(D); At the time of writing the United States Coast Guard is apparently still
preparing its response following public consultation on the availability of such technology: see
Department of Homeland Security, Coast Guard, “Cruise Vessel Safety and Security [sic] Act of
2010, Available Technology” (31 May 2011).
37
46 USC 3507(a)(1)(E).
38
46 USC 3507(a)(1)(B).
39
46 USC 3507(a)(1)(C). This must be done with consideration given to fire safety codes (s 3507
(a) (2)).
40
46 USC 3507(f).
41
46 USC 3507(b)(1).
42
46 USC 3507(c).
43
46 USC 3507(d).
– certain crew members be trained in the “prevention, detection, evidence preser-

vation, and reporting of criminal activities in the international maritime
environment”.44
4.1.2.3 Vessel Operations
In addition the Act sets out two requirements relating to vessel operations, in the
form of procedures that must be carried out during a voyage. These require that:
– on-board video surveillance is maintained45; and
– procedures regarding access by crew members to passengers’ cabins are
implemented.46
4.1.2.4 Vessel Administration
The Act also contains one requirement that impacts upon vessel administration.
This relates to the data that the United States authorities now collect, and publish in
online database form in relation to cruise vessel crime.47 This provision is discussed
in Chap. 5.48
4.1.3 The Act in Context
At one level, the Act can be placed within the long history of legislation aimed at
improving the safety of passengers on board seagoing vessels. However, it differs
from most maritime initiatives in that it deals with personal safety, rather than the
usual concerns addressed by vessel safety regulations (e.g. SOLAS), where the aim
is to avoid disaster at sea, and make sure that people survive if disaster does strike.
Instead, as the above summary suggests, the Act introduces a range of safety
requirements of the kind one might find in legislation directed at hotels or other
non-nautical environments.
An important issue, for both legal and practical reasons, is the relationship of the
Act to foreign shipping. Unlike situations in which the application of domestic
United States law to foreign-flagged vessels is ambiguous,49 there can be no
44
46 USC 3508.
45
46 USC 3507(b)(2).
46
46 USC 3507(f).
47
46 USC 3507(g)(4).
48
49
See for example McCulloch v Sociedad Nacional de Marineros de Honduras 372 US 10 (1963)
(SC) (labour laws); see also Wright, “Beyond the Sea and Spector: Reconciling Port and Flag State
question that the Act is aimed at such vessels. All the preparatory material available
on the Act demonstrates the intention to include all cruise vessels visiting United
States ports within the legislation’s scope.50 A key reason for this is that, as the
findings of Congress included in the Act state, of the approximately 200 overnight
ocean-going cruise vessels worldwide only a tiny handful are flagged in the United
States.51
If this issue of application was no so clear-cut, the Act could be vulnerable to
challenge on the basis of the 2005 Supreme Court decision in Spector v Norwegian
Cruise Lines.52 This decision involved a claim by a number of disabled cruise
passengers and their companions under the Americans with Disabilities Act 1990
that the vessels on which they had taken their cruise holidays were insufficiently
adapted to their needs. For example, while their cabins were wheelchair-accessible,
many of the ships’ common areas such as restaurants were not. Assessing the
passengers’ claim the Supreme Court confirmed its long-standing position that
United States legislation is presumed to apply to foreign vessels entering the
country’s territorial jurisdiction.53 However, the Court also held that there was a
limited (domestic law) exception to this rule in situations where the legislation in
question would affect a vessel’s “internal affairs”, and there was no clear congres-
sional statement confirming the legislation’s application to foreign vessels.54 The
precise meaning of “internal affairs” was not clearly defined by the Court,55 which
sent the matter back to the lower courts for detailed consideration on this issue, but
Control over Cruise Ship Onboard Environmental Procedures and Policies” (2007); Oliver, “Legal
and Policy Factors Governing the Imposition of Conditions on Access to and Jurisdiction over
Foreign-Flag Vessels in US Ports” (2009), 233.
50
See for example Committee on Transport and Infrastructure, United States House of
Representatives, Cruise Vessel Security and Safety Act of 2009: Report to accompany H.R. 3360
(7 November 2009), 1–2; United States House of Representatives, “Cruise Vessel Security and
Safety Act of 2010” (30 June 2010), H5265–H5267 (speeches of Representatives Cummings, Poe
and Oberstar).
51
Cruise Vessel Security and Safety Act 2010, s 2(1) and (11); see also Subcommittee on Coast
Guard and Maritime Transportation of the Committee on Transportation and Infrastructure, United
States House of Representatives, Crimes Against Americans on Cruise Ships (2007), vii; The
Senate’s report on the Bill suggested that only one United States vessel, engaged in coastwise trade
in Hawaii, would fall within the scope of the legislation: Committee on Commerce, Science, and
Transportation, United States Senate, Cruise Vessel Safety and Security Act of 2009: Report of the
Committee on Commerce, Science, and Transportation on S. 588 (8 September 2009), 1. A similar
finding was made in Armement Deppe SA v United States 399 F 2d 794 (1968) (CA, 5th Circuit),
concerning the regulation of liner conferences using United States ports. As there were so few
United States interests involved, the law in question would have been unworkable had foreign
interests not also been targeted.
52
Spector v Norwegian Cruise Line Ltd 545 US 119 (2005) (SC).
53
This conforms with the widely-accepted international law position, see Chap. 2, Sect. 2.4.1.
54
Spector v Norwegian Cruise Line Ltd 545 US 119 (2005) (SC), 129–132. For the international
law concept see Chap. 2, Sect. 2.4.3.3.
55
Spector v Norwegian Cruise Line Ltd 545 US 119 (2005) (SC), 142.
the majority suggested that the concept included matters that had no impact on
United States interests, and “fundamental issues of ship design and construction”.56
Even though some aspects of the Act could arguably relate to the “internal
affairs” of a cruise vessel, such as the procedures used for crew access to
passengers’ cabins, this exception will not apply to the Act. The wording of the
Act and the legislative materials available make it clear that Congress was prepared
to regulate the matters in question to promote the safety of the (predominantly
American) cruise-going public, regardless of vessel flag or the cruise line’s opera-
tional preferences.
The United States’ interest in regulating this industry dominated by foreign-
flagged vessels becomes clearer when one looks to the underlying social and
economic interests. Although 200 vessels is not a large number in the context of
world shipping,57 and only 176 of those vessels operate regularly in North American
waters,58 the Act is far from a niche regulation when the number of passengers
involved in the cruise industry on an annual basis is taken into account. The recitals to
the Act note that approximately 12 million people were estimated to have taken a
cruise in 2007 alone, and industry figures show this having grown to just over
16 million in 2011.59 Although the proportion of these passengers who begin their
cruise in North America has declined from 91 % in 2000 to 69 % in 2010,60 there is
no denying that the United States (and Florida in particular) is still the industry’s
“home base”.61
This is borne out by the fact that many of the largest cruise lines are
headquartered in the United States, including Carnival Cruise Lines, Royal Carib-
bean Cruises, Disney, Holland America, and Norwegian Cruise Lines. Exceptions
to this include Star Cruises (headquartered in Hong Kong), Costa Cruises
(headquartered in Italy, although now a subsidiary of Carnival), TUI Cruises
(headquartered in Germany, although partly owned by Royal Caribbean) and a
number of smaller operators.62 The United States cruise market is highly
concentrated, with Carnival, Royal Caribbean, Norwegian, and Disney accounting
56
Spector v Norwegian Cruise Line Ltd 545 US 119 (2005) (SC), 133–135. The lower court
decisions following this ruling have not clarified this matter further, see Kaye et al, “Cruise Ships”
(2011), para 2.03c
57
This is the approximate number of vessels operated by the members of CLIA at the time of the
Act’s entry into force. The number is expected to rise to just over 220 by 2014: Cruise Lines
International Association, The Overview: 2010 Cruise Market Overview – Statistical Cruise
Industry Data Through 2009 (2010), 12–13.
58
Business Research & Economic Advisors, The Contribution of the North American Cruise
Industry to the U.S. Economy in 2010 (June 2011), 9. The number was only 111 in 2000.
59
Cruise Lines International Association, 2012 Cruise Industry Update (February 2012), 5.
60
Cruise Lines International Association, 2012 Cruise Industry Update (February 2012), 5.
61
Industry to the U.S. Economy in 2010 (June 2011), 14–16.
62
For a list of the largest cruise operators see Talley, Port Economics (2009), 18–19.
for 96 % of passenger nights in 2010.63 The corporate structure used by cruise lines
can be complex. For example, in one case involving Royal Caribbean Cruises it was
noted that the parent company was headquartered in Miami, but was incorporated in
Liberia. All of the ships in its fleet were owned by subsidiary companies, with the
vessel relevant to the case operating under the Norwegian flag out of the port of
Miami.64
A further matter relevant to this work is that the Act regulates matters that are
either not the subject of any international agreement, or which go beyond such
requirements.65 As a result the Act can also be viewed within another historical
trend, that of unilateral United States legislation, which demonstrates the ability of
economically powerful and strategically positioned states to exercise a great deal of
influence over foreign shipping.66 Two of the most well-known examples of such
action on the part of the United States have been the imposition of a double-hull
condition and increased financial responsibility requirements for oil tankers follow-
ing the 1989 Exxon Valdez disaster.67 Other groups of examples are those related to
United States labour laws,68 as well as environmental developments regarding
ballast water and vessel emissions.69
4.2 Measure Based on Port State Jurisdiction?
The Act applies to any passenger vessel (including foreign-flagged vessels, as

discussed above) that “is on a voyage that embarks or disembarks passengers in
the United States; and is not engaged on a coastwise voyage”.70 At first glance this
appears to be a straightforward example of a measure based on port state jurisdic-
tion, as in order for passengers to embark or disembark from a cruise ship it must
63
United States Department of Transportation, Maritime Administration, North American Cruise
Statistical Snapshot, 2010 (March 2011), 5–6.
64
United States v Royal Caribbean Cruises Ltd 24 F Supp 2d 155 (1997) (DC, Puerto Rico), 158.
For further examples see United States v Roberts 1 F Supp 2d 601 (1998) (DC, East Louisiana)
(Carnival); Spector v Norwegian Cruise Line Ltd 545 US 119 (2005) (SC), 126 (Norwegian Cruise
Lines).
65
For example, the Act requires slightly higher railings on passenger vessels than the regulation on
ships’ rails in Annex I, reg 25 of the International Convention on Load Lines (5 April 1966);
compare 46 USC 3507(a)(1)(A).
66
Some 7,579 ocean-going vessels made a total of 62,747 calls at United States ports in 2010:
United States Department of Transportation, Maritime Administration, Vessel Calls Snapshot,
2010 (May 2011), 1.
67
68
69
See Oliver, “Legal and Policy Factors Governing the Imposition of Conditions on Access to and
Jurisdiction over Foreign-Flag Vessels in US Ports” (2009), 276 and following.
70
46 USC 3507(k)(C) and (D).
4.2 Measure Based on Port State Jurisdiction? 73
realistically enter a port. Furthermore, there is no additional application provision,

for example relating to vessels that are merely transiting through the United States’
territorial sea without making a port call. However, the wording of this provision,
combined with the Act’s legislative background, makes the situation more
complex.
4.2.1 When Does the Act Begin to Apply?
One important matter that is not clear on its wording is when the Act begins to apply
to a vessel. Even though it is clear that affected vessels must eventually arrive in a
United States port, are some or all of the Act’s requirements intended to apply
before and after the point of arrival?
A narrow interpretation would be that the Act applies only during the time that
the vessel is in a United States port for the purpose of allowing passengers to
embark or disembark. However, the background to the Act suggests that the
legislators had a wider interpretation in mind. A wider reading of the statute
would allow it to apply from the time the “voyage” in question commenced, and
continue to apply after the vessel had visited a United States port. This would have
the effect of making a vessel that began its voyage in a European port, and then
visited a United States port and a South American port before returning to Europe,
subject to all of the Act’s provisions for the entire duration. Even though the Act’s
proponents were primarily concerned with the safety of United States nationals,71
the requirement to embark or disembark passengers in the United States could
arguably be satisfied in such a situation with no more than a shore excursion of the
kind commonly organised by cruise lines for their passengers.
This preference for a wider interpretation becomes clear when the Congressional
hearings prior to the Act’s coming into force are taken into account, during which
the ideas behind virtually all of the Act’s provisions were discussed.72 These
focused on the extensive jurisdiction asserted by the United States in relation to
crimes on board vessels,73 noted above, and this is reflected in the wording of the
71
Hence the title of the hearing “Crimes Against Americans on Cruise Ships”: Subcommittee on
Coast Guard and Maritime Transportation of the Committee on Transportation and Infrastructure,
United States House of Representatives, Crimes Against Americans on Cruise Ships (2007).
72
Americans on Cruise Ships (2007), 22 (higher railings), 24 (crime scene preservation), 41–42
(information for passengers on FBI contact numbers), 52–53 and 79–80 (video surveillance),
59–61 (response to sexual assaults), and 210 (database of crime reports); Subcommittee on Coast
Guard and Maritime Transportation of the Committee on Transportation and Infrastructure, United
States House of Representatives, Cruise Ship Security Practices and Procedures (2007), 68–69
(“man overboard” sensors).
73
Act itself where it states that the crime reporting requirement applies to “a voyage
that departed from or will arrive at a United States port”.74
Nonetheless, the narrower interpretation mentioned above could still be argued
for on the basis of the United States’ domestic approach to statutory interpretation
where international issues are concerned. While the Act is clearly intended to apply
to foreign vessels entering the territory of the United States, as discussed above, the
question of its application to vessels on an extraterritorial basis is a different matter.
The Supreme Court follows a well-established principle that, absent a very clear
legislative statement to the contrary, United States legislation does not apply
extraterritorially.75 On the wording of the Act, only those elements relating to the
reporting of crimes demonstrate a clear intention to apply outside of the United
State’s territorial jurisdiction.76 All other provisions could be interpreted as apply-
ing only when a vessel, which has begun a voyage that will eventually involve a
United States port visit, actually arrives in United States territory. Although not a
binding interpretation, a United States Coast Guard bulletin on a crew training
requirement found in the Act refers to this applying to “all passenger vessels subject
to the [Act] entering U.S. waters”.77
4.2.2 Could the Act Have Been Applied More Widely?
The next question is whether arrival in the United State’s territorial sea would be
sufficient, or whether the Act’s provisions relating to vessels could only be applied
as a matter of port state jurisdiction. Relevant to this consideration is another
oft-cited canon of construction, namely that the courts will be reluctant to give a
Americans on Cruise Ships (2007), vi–ix, 18–19, 182 and following (evidence on behalf of the
Federal Bureau of Investigation), 239 and following (evidence on behalf of United States Coast
Guard).
74
46 USC 3507(g)(3)(B)(iv) (emphasis added); compare 33 CFR 120.220.
75
Equal Opportunity Employment Commission v Arabian American Oil Co 499 US 244 (1991)
(SC); see also McCulloch v Sociedad Nacional de Marineros de Honduras 372 US 10 (1963) (SC).
76
For example, the log book must record specified crimes “committed on any voyage that embarks
or disembarks passengers in the United States”, and the crime must be reported to the FBI if it
occurs in the United States’ territorial jurisdiction, within its admiralty and maritime jurisdiction if
the vessel is owned by a United States person, or essentially anywhere if the victim or perpetrator
is a United States national: 46 USC 3507(g).
77
United States Coast Guard, Cruise Vessel Security and Safety Act of 2010: Publication of
Training Standards and Curricula (4 August 2011). By comparison Chairman of the House
Committee on Transportation and Infrastructure, and member of the Coastguard and Marine
Transportation Subcommittee during the hearings on the Act, Representative James L Oberstar
noted in his speech before the passing of the Act that its requirements applied to foreign vessels as
conditions of port entry: United States House of Representatives, “Cruise Vessel Security and
Safety Act of 2010” (30 June 2010), H5266. On this approach see below Sect. 4.4.6.
statute a meaning inconsistent with international law if another possible construc-

tion remains.78
One means of testing the legitimate extent of the Act’s application under
international law is to consider whether its vessel-related requirements79 could
have been drafted so as to apply based on coastal state jurisdiction over vessels
that were merely passing through the United States’ maritime zones, without calling
at a port. This requires an assessment under the provisions of UNCLOS on innocent
passage which, despite not having ratified the Convention, the United States has
accepted as binding.80
As noted in the two preceding chapters, the most important provision of
UNCLOS in this context is article 21, which determines the extent to which coastal
states may regulate vessels engaged in innocent passage through the territorial
sea.81 Like many other maritime regulations, the Act has at its core a safety
focus. Accordingly, the meaning given to the phrase “safety of navigation” under
article 21(1)(a) is a key factor. This issue is particularly important if port state
jurisdiction is to play a significantly distinct role from coastal state jurisdiction
more generally, given the central importance of safety measures in shipping
regulation.
If the provisions of the Act fell within the scope of this phrase, then those not
dealing with CDEM standards could have been applied to vessels in the territorial
sea. This would only work if a wide interpretation of “safety of navigation” was
adopted, meaning that all laws aimed at vessel safety fell within this phrase. On this
interpretation the relevant sentence in article 21 could equally have been drafted
with “safety of shipping” or “maritime safety” substituted for “safety of
navigation”.
However, a narrower interpretation is more convincing. In this case “safety of
navigation” imports a more specific policy reference than the wider interpretation
would acknowledge. First, the use of the term “navigation” corresponds to the rest
of the sub-paragraph’s wording: “the safety of navigation and the regulation of
maritime traffic”. “Navigation” is arguably being used here to describe the naviga-
tion of vessels within the territorial sea, rather than as a term to describe shipping
more generally.82 The use of two concepts is understandable in context: “safety of
78
Murray v Schooner Charming Betsy 6 US 64 (1804) (SC); see also Lauritzen v Larsen 345 US
571 (1953) (SC), noting that a balance between Congress’ wording and international maritime
interests must be sought when interpreting maritime legislation.
79
The jurisdiction of a coastal state over criminal acts on board vessels in its territorial sea is dealt
with separately under UNCLOS, art 27.
80
See Union of Soviet Socialist Republics and the United States of America, “Joint Statement with
Attached Uniform Interpretation of Rules of International Law Governing Innocent Passage”
(1989), which sets out a joint interpretation implicitly accepting the application of the innocent
passage-related articles of UNCLOS, including article 21.
81
The equivalent provisions on the EEZ are even more restrictive: see UNCLOS, art 56 and
following.
82
Compare the broader flag state provision on safety: UNCLOS, art 94(3).
navigation” could refer to standards directly related to navigation such as the

installation and use of signal lights, while “regulation of maritime traffic” has a
more specific meaning that relates to the sea lanes and traffic separation schemes
provided for in article 22 of UNCLOS.83 Second, the narrow definition fits with the
narrow scope of article 21 overall. The provision is an exhaustive list of the few
areas in which coastal states are permitted to regulate foreign vessels passing
through their territorial seas.84 Extending this authority to all aspects of shipping
safety, even with the CDEM/GAIRS qualifier in paragraph (2), would
contradict this.
Third, the final agreed text appears to be narrower than some of the proposals put
forward during the drafting process, such as “maritime safety and traffic and, in
particular, the establishment of sea lanes and traffic separation schemes” combined
with a separate category of “maritime transport”,85 “the safety of navigation and the
regulation of maritime traffic and transport, including the designation of sea lanes
and the establishment of traffic separation schemes”,86 or “the safety of navigation
and the regulation of sea navigation”.87 This suggests that the drafters of UNCLOS
had the opportunity to consider broader versions of the safety concept, before
deliberately selecting a wording that reflected a narrower version of the coastal
state’s regulatory powers in this context.88
Fourth, the use of the phrase “safety of navigation” elsewhere in UNCLOS
supports a narrow interpretation. This is particularly so in the case of article
22, which deals with sea lanes and traffic separation schemes and provides that
coastal states may establish such lanes and schemes “where necessary having
regard to the safety of navigation”.89 Other articles are less relevant but not
inconsistent with this line of argument: article 60 requires the establishment of
safety zones around installations in the EEZ (and the removal of disused
installations) “to ensure safety of navigation”,90 while article 225 provides that
83
See Nordquist et al, United Nations Convention on the Law of the Sea 1982: A Commentary
(vol II, 1985), 193–194.
84
See generally Nordquist et al, United Nations Convention on the Law of the Sea 1982: A
Commentary (vol II, 1985), 184–203.
85
From a proposal by Cyprus, Greece, Indonesia, Malaysia, Morocco, the Philippines, Spain and
Yemen: Nordquist et al, United Nations Convention on the Law of the Sea 1982: A Commentary
(vol II, 1985), 187.
86
From a proposal by Malaysia, Morocco, Oman and Yemen: Nordquist et al, United Nations
Convention on the Law of the Sea 1982: A Commentary (vol II, 1985), 189.
87
From a proposal by Bulgaria, the German Democratic Republic, Poland and the USSR:
Nordquist et al, United Nations Convention on the Law of the Sea 1982: A Commentary (vol II,
1985), 191.
88
The wording used appears to have been sourced from a proposal made by the United Kingdom:
1985), 188.
89
UNCLOS, art 22(1). See also UNCLOS arts 41–42 in relation to international straits.
90
UNCLOS, art 60(3) and (4).
states “shall not endanger the safety of navigation or otherwise create any hazard to
a vessel” when exercising their enforcement powers. The phrase is also employed
in relation to aircraft, which must “operate with due regard for the safety of
navigation” when exercising the right of transit passage in international straits.91
All four examples relate to the safe operation of vessels or aircraft in certain
scenarios, rather than maritime safety in general.
Fifth, the well-known Nordquist commentary to UNCLOS appears to support
this interpretation of “navigation”92:
Paragraph 1(a) reflects a basic concept incorporated throughout the Convention – the
primacy of global maritime navigation. In paragraph 1(a) the navigation right is balanced
against the right of a coastal state to regulate innocent passage in its territorial sea. It
complements article 19 [meaning of innocent passage], paragraph 1.
This suggests a provision more closely connected with the safety of the act of
innocent passage, i.e. the safety of progressing through a potentially crowded
territorial sea, as opposed to the safety of shipping more generally. However, the
somewhat ambiguous wording of article 21(1)(a) means that any coastal state could
argue for a broad interpretation of “safety of navigation” if challenged in relation to
a unilateral safety-related law.
Based on the narrow interpretation preferred here, the Act’s vessel-related
provisions could not realistically be brought within the “safety of navigation”
concept of article 21(1)(a), as they concern the personal safety of passengers and
crew on board rather than the safe navigation of the vessel itself. Even if an
exception could be made for the hailing device requirement, it still does not
conform with the GAIRS requirement for measures of an equipment or design
nature.93 Accordingly, the standards set by the Act could not be applied to vessels
enjoying innocent passage through the territorial sea, let alone in the more restricted
environment of the EEZ.94
4.2.3 Summary
Based on the foregoing, and putting its crime-related provisions to one side, the Act
falls squarely within the scope of this work as a measure that must be applied by
way of port state jurisdiction.95 Although on its face the Act’s application provision
91
UNCLOS, art 39(3)(a).
92
1985), 200.
93
UNCLOS, art 21(2).
94
See UNCLOS, art 56.
95
As a matter of practice, the United States Coast Guard will be enforcing the Act’s requirements
as part of its regular port state control programme: United States Coast Guard, Cruise Vessel
Security and Safety Act (CVSSA) of 2010 Implementation Procedures (28 June 2011).
suggests a wider scope,96 and this may have been in the minds of the persons
involved in the framing of the legislation, this would contravene well-established
United States law dealing with the extraterritorial effect of legislation, and its
consistency with international law.
4.3 Requirements Affecting Vessel Conditions
Proceeding on the basis that the Act represents a measure based on port state
jurisdiction, the question arises as to whether it is permissible, under international
law, for a state to impose rules affecting vessel conditions97 on foreign vessels
visiting its ports. While they may not sound like significant changes compared with
a double hull requirement, for example, the introduction of higher railings,
peepholes and locks, adequate video surveillance systems and other conditions
the Act requires vessels to meet do add up to a significant cost for vessel operators.
In addition, the case of Spector represents a far more significant cost for passenger
vessel operators who are now compelled to upgrade their fleets to comply with the
United States’ disability access laws.98 While the legislation ruled on in that case
was of general application,99 rather than a law applying specifically to shipping, it
provides a powerful reminder of the potential costs for vessel operators rules on
vessel conditions potentially represent. Is there any scope to argue under interna-
tional law that the port state lacks the jurisdiction to impose measures of this kind?
The position taken in this book is that, given the basic principle of a foreign
vessel’s subjection to territorial jurisdiction when visiting port,100 there can be no
serious dispute as to the legality of provisions regulating the vessel conditions such
as those found in the Act.101 From the port state’s perspective such provisions allow
for a definitive assessment of whether the vessel meets the relevant standard, with
any breach detected deemed to have occurred at the time of inspection, and thus
safely within the port state’s territorial jurisdiction.102 This is similar to the concept
of a continuing offence, i.e. an offence such as bigamy that is committed in one
96
46 USC 3507(k).
97
For an outline of this category see Chap. 3, Sect. 3.3.3.1.
98
Spector v Norwegian Cruise Line Ltd 545 US 119 (2005) (SC).
99
Americans with Disabilities Act 1990; 42 USC 12181 and following.
100
101
Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 102; Johnson,
Coastal State Regulation of International Shipping (2004), 39–40; Ringbom, The EU Maritime
Safety Policy and International Law (2008), 214; Molenaar, “Port State Jurisdiction” (2010).
102
Anderson, “The Roles of Flag States, Port States, Coastal States and International
Organisations in the Enforcement of International Rules and Standards Governing the Safety of
Navigation and the Prevention of Pollution from Ships under the UN Convention on the Law of the
Sea and other International Agreements” (1998), 577; Ringbom, The EU Maritime Safety Policy
and International Law (2008), 237; Molenaar, Oude Elferink and Prevost, Study on the Labour
4.3 Requirements Affecting Vessel Conditions 79
state, but will continue to be viewed as a crime in any state where the bigamist
resides.103 By contrast, Keselj has argued that such a breach is a “continuing
activity that cannot be identified as an activity carried out within the port facilities
of a state”.104 This approach is untenable as it would excuse almost every breach of
a rule on vessel conditions: vessel operators could simply claim not to know when
the standard in question was breached and the port state would be helpless to
respond without evidence that it had occurred within port. Moreover, international
practice, notably port state control arrangements, clearly rejects this line of
argument.
Requirements for acoustic hailing systems, the presence of crew members
trained in crime scene preservation, specified medical equipment and so forth,
based primarily on passenger safety considerations, fall comfortably within the
range of port state regulations now applied and enforced throughout the world.
While the majority of standards applied in this way fall within the ambit of the
IMO’s conventions, and are enforced by way of port state control organisations,
there is no rule of international law that gives the IMO or other international bodies
the exclusive right to set such standards.105
In this context, the regulation of vessel conditions based on a policy of personal
safety and security, the Act is a relatively straightforward example of port state
jurisdiction in action. There is nothing to suggest that the legislation involves any
abuse of right or bad faith on the part of the United States, and there is no
discrimination based on flag.106 If a cruise vessel operator does not wish to comply
they may simply decide not to upgrade their vessel and up-skill their crew, and trade
elsewhere, possibly causing the United States to re-think its unilateral strategy.
Beyond this, international law currently contains no relevant limitations on such an
exercise of jurisdiction.
An exception to this line of argument comes from a 1998 decision of the
New Zealand Court of Appeal in Sellers v Maritime Safety Director.107 This
decision has been discussed by a number of international scholars, the most
convincing of whom have argued that the reasoning in the judgment is flawed,
and that the conclusions reached do not accurately reflect international law.108 The
appellant in Sellers was the master of a Maltese-registered private yacht, who was
Carried Out by Ships under Member States’ or Third Countries’ Flags: Aspects of International
Law (2008), 7.
103
Akehurst, “Jurisdiction in International Law” (1972–1973), 153.
104
Convention on the Law of the Sea and the Memoranda of Understanding” (1999), 134.
105
106
107
Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA).
108
Coverage” (2007), 231–232; Ringbom, The EU Maritime Safety Policy and International Law
(2008), 339; compare Davidson, “Freedom of Navigation on the High Seas: Sellers v Maritime
Safety Inspector” (1999); Devine, “Port State Jurisdiction: A Contribution from New Zealand”
(2000); Özçayir, Port State Control (2004), 90.
not granted clearance to leave port by the New Zealand authorities on the basis that
he was not carrying a radio or emergency locator beacon. The relevant provision of
New Zealand’s maritime safety legislation requires the master of a pleasure vessel
departing for overseas to satisfy the maritime safety authorities that the vessel
complies with New Zealand’s safety regulations and that “the pleasure craft and
its safety equipment are adequate for the voyage”.109
The appellant, who was deliberately not carrying the required equipment based
on his personal philosophy of navigation, was prosecuted and appealed on the basis
of the principle of the freedom of the high seas. The Court of Appeal’s decision was
given by Justice Keith, now a Judge of the International Court of Justice. The Court
drew upon the principle of the flag state’s exclusive jurisdiction over its vessels on
the high seas, and held that the effect of New Zealand’s legislation was to limit this
exclusive jurisdiction, by requiring safety equipment to be carried outside of
New Zealand’s internal waters, where no such requirement was imposed by the
flag state. The jurisdiction of port states was discussed only in relation to port state
control organisations and the secondary role of port states under conventions such
as SOLAS and STCW. A further aspect of the decision was that article 21 of
UNCLOS, in limiting a state’s jurisdiction over foreign vessels in the territorial sea,
was held to demonstrate that a port state has no ability to create its own, unilateral
safety obligations. The Court concluded that110:
[A] port state has no general power to unilaterally impose its own requirements on foreign
ships relating to their construction, their safety and other equipment and their crewing if the
requirements are to have effect on the high seas. Any requirements cannot go beyond those
generally accepted, especially in the maritime conventions and regulations; [. . .]. In
addition, any such port state powers relate only to those foreign ships which are in a
hazardous state.
Accordingly the Court’s view was that the requirements imposed by the mari-
time safety authorities under section 21 of the Maritime Transport Act had to be in
accordance with international law, and thus limited to requirements provided for
under internationally agreed rules and standards.111
The reasoning in Sellers is confusing and inadequate as it draws on principles of
international maritime law, and maritime conventions, without first establishing the
basic nature of port state jurisdiction. This is the position discussed in Chap. 2 of
this book, namely that a state has largely unfettered territorial jurisdiction when a
foreign vessel is voluntarily within its port. UNCLOS has only a very minor impact
on this position, as the parties negotiating that convention decided to leave the
exercise of port state jurisdiction to the discretion of states.112 Nor do the rules set
109
Maritime Transport Act 1994, s 21.
110
Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA), 57.
111
Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA), 62.
112
See Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 94; Anderson,
“Port States and Environmental Protection” (1999), 342; Churchill and Lowe, The Law of the Sea
(1999), 60–61; Johnson, Coastal State Regulation of International Shipping (2004), 35 and 46.
4.3 Requirements Affecting Vessel Conditions 81
out in maritime conventions such as MARPOL and SOLAS alter this position. Even
though they may provide port states with a relatively minor role compared with the
flag state, this does not prevent a port state from going beyond the limits of such
conventions and developing more stringent domestic standards, unless such a limit
is expressly included in the convention.113 While the aim of such conventions may
be to harmonise international maritime law, this aim is not sufficient to limit the
prescriptive and enforcement jurisdiction of states without explicit words to this
effect.114
Instead of proceeding from this basis, the Court in Sellers took such international
rules as a starting point, and interpreted them as representing the limits of port state
jurisdiction. Molenaar’s criticism is summarised as follows115:
The Court appears to have: misinterpreted Article 211(3) of the LOS Convention, failed to
discuss the absence of a right of access to ports under general international law and Article
25(2) of the LOS Convention, incorrectly linking the notion of “generally accepted” to port
state jurisdiction, misinterpreted the function of regional merchant shipping PSC regimes,
and failed to refer to the savings clauses therein.
As Ringbom notes, following the Court’s logic would mean that the majority of
the world’s port states are acting unlawfully in applying their domestic shipping
standards.116
The Court’s concern for the impact of domestic standards on vessels on the high
seas is understandable, and similar concerns are discussed elsewhere in this work in
relation to the growing use of port state jurisdiction to regulate foreign shipping.
However, international law does not prevent a state from declaring that if a vessel
wants to visit (or depart from) its ports, it must carry specific equipment. The master
in Sellers could have jettisoned his newly-purchased radio as soon as he was outside
of New Zealand’s territorial sea, but he ought to have been compelled to comply
with the authorities’ safety standards while within New Zealand’s jurisdiction.
Working against this outcome was the nature of the provision itself, which did
not explicitly state that a vessel must carry a radio before it can leave port, but rather
relied on secondary legislation (New Zealand’s Maritime Rules) and the decisions
of the government safety authority. This allowed the Court to hold that section 21 of
the Maritime Transport Act had to be interpreted in accordance with international
law, whereas a more assertively-worded statute, making it clear that this was a
113
See for example MARPOL, Annex VI, reg 15(1). See further Chap. 5, Sect. 5.3.1.
114
Ringbom, The EU Maritime Safety Policy and International Law (2008), 219–223; Johnson,
Coastal State Regulation of International Shipping (2004), 43–44; Boyle, “EU Unilateralism and
the Law of the Sea” (2006), 24–25.
115
age” (2007), 232 (references omitted); see also Molenaar, Oude Elferink and Prevost, Study on the
Labour Market and Employment Conditions in Intra-Community Regular Maritime Transport
Services Carried Out by Ships under Member States’ or Third Countries’ Flags: Aspects of
International Law (2008), 38–39.
116
unilateral exercise of New Zealand’s port state jurisdiction (in the manner of the
Act discussed in this chapter) could have provided a different outcome under
New Zealand law.117 Nonetheless, it is the position of this author that the line of
reasoning in Sellers is flawed, and should be overlooked in the context of the
regulation of international shipping through port state jurisdiction.
In addition to the Sellers line of reasoning, some authors have outlined restrictive
views of port state jurisdiction in the context of regulating vessel conditions by
placing too much reliance on the provisions of UNCLOS.118 For example, Keselj
claims that a port state could not impose stricter vessels standards against vessels in
port, and that even article 25(2) of UNCLOS could only be used for entry conditions
based on internationally-accepted standards.119 As the discussion in Chap. 2 has
shown, a focus on UNCLOS alone can be misleading in the port state context. On
other occasions authors have argued for restrictions on the basis that the internal
affairs approach is a binding rule of international law, so that a port state may
exercise jurisdiction “only in those situations in which the effects extend beyond the
vessel”.120 This argument has also been addressed in Chap. 2, demonstrating that
this is not a rule of international law restricting port state jurisdiction.121
4.4 Requirements Affecting Vessel Operations
While the international law position on port state jurisdiction regarding the regula-
tion of vessel conditions is relatively clear, the same cannot be said where vessel
operations are involved.122 This is because unlike vessel conditions that are essen-
tially static and can be assessed at the time the vessel reaches port, a breach of
operational requirements can potentially occur at any point during a vessel’s
voyage. For instance, the event might take place outside of the port state’s territorial
jurisdiction, perhaps on the high seas or in another state’s territorial sea, long before
the vessel arrives in port. In such cases the link between a foreign vessel’s brief visit
and the regulatory efforts of the port state become more tenuous, and the legal
issues more complex. The two examples found in the Act that help illustrate this
issue are those relating to video surveillance and crew access to passengers’ cabins.
117
See Geiringer, “Tavita and All That: Confronting the Confusion Surrounding Unincorporated
Treaties and Administrative Law” (2004), especially 76–77 and 79–80, 104–105.
118
See for example Meese, “When Jurisdictional Interests Collide: International, Domestic, and
State Efforts to Prevent Vessel Source Oil Pollution” (1982), 86.
119
Convention on the Law of the Sea and the Memoranda of Understanding” (1999), 133–134.
120
Hydeman and Berman, International Control of Nuclear Maritime Activities (1960), 252.
121
See Chap. 2, Sect. 2.4.3.3; see also Chap. 6, Sect. 6.4.
122
For an outline of this category see Chap. 3, Sect. 3.3.3.2.
4.4 Requirements Affecting Vessel Operations 83
4.4.1 Video Surveillance Requirement
In relation to the video surveillance requirement, the Act uses the same term to refer
to both its installation and operation, namely that such a system should be
“maintained”.123 Beyond noting that the purpose of the system is to document
crimes that occur on board, and provide evidence for prosecutions of such crimes,
the Act gives no further information on how the system is to be operated.
Video surveillance has been in use in the cruise industry since before the Act
entered into force,124 with the biggest challenge being to effectively monitor all the
cameras located throughout the different areas of a cruise ship, and determine how
long to retain the footage.125 As the representative of Royal Caribbean Cruises
stated in his testimony before the congressional subcommittee126:
The monitoring is a different challenge. . . . The challenge there is we have over
650 cameras on some of our ships. To monitor all of those full time is a monstrous task,
plus you bring into consideration the attention span of the people that are actually sitting at
the monitor.
Responding to the Coast Guard’s call for submissions, CLIA argued that best
approach was to use a standard risk assessment process to determine the manner in
which each vessel’s surveillance system should be maintained, relying on factors
such as where specific incidents are most likely to occur, and to retain the footage
for 7 days (unless otherwise requested).127 While CLIA has done its best to provide
a coherent approach to the issues of camera placement and footage retention, the
operational aspect of this provision of the Act will remain vague until the Coast
Guard has completed its rule-making process.128 At present it would be difficult for
123
46 USC 3507(b)(1).
124
See Subcommittee on Coast Guard and Maritime Transportation of the Committee on Trans-
portation and Infrastructure, United States House of Representatives, Crimes Against Americans
on Cruise Ships (2007), 79–80.
125
Subcommittee on Coast Guard and Maritime Transportation of the Committee on Transporta-
and Procedures (2007), pp 68 and 151.
126
and Procedures (2007), p 63.
127
Cruise Lines International Association, CLIA White Paper: Video Recording – Cruise Vessel
Security and Safety Act of 2010 (25 July 2011).
128
In mid 2011 the United States Coast Guard described this area as one requiring further rule-
making that was not yet enforceable, and at the time of writing appears to be still preparing its
response following public consultation to determine how best to implement this requirement:
United States Coast Guard, Cruise Vessel Security and Safety Act (CVSSA) of 2010 (July 2011);
Department of Homeland Security, Coast Guard, “Cruise Vessel Safety and Security [sic] Act of
2010, Available Technology” (31 May 2011).
either the cruise line or the enforcement agency to argue over whether the monitor-
ing of the surveillance system met the Act’s requirements in any given situation.
4.4.2 Passenger Cabin Access
The other provision applying throughout a vessel’s voyage involves crew access to
passengers’ staterooms. This requires the vessel owner, having established appro-
priate procedures regarding which crew members can access staterooms and when,
to implement them.129 Like the video surveillance requirement this provision is
vaguely worded, giving little guidance for the vessel operator. However, unlike that
other requirement, which involves a relatively passive background operation, this
goes to the heart of day-to-day operations on board a cruise ship. Furthermore, it has
not been singled out by the Coast Guard for further rule-making.
While all CLIA-affiliated cruise operators had such procedures in place before
the passage of the Act,130 the requirement that they be “fully and properly
implemented” means that, in the event of a crime or other incident on board a
vessel subject to the Act, the United States authorities might begin investigating the
operator’s procedures and its supervision of crew members with a view to taking a
prosecution against the operator for breach of the “crew access” provision. The lack
of detail in the provision works against the operator, as there are no clear guidelines
representing the authorities’ expectations, while a failure to meet those expectations
could lead to a prosecution. The best that can be said, from the operator’s perspec-
tive, is that they are largely free to design their own procedures, aligned with their
current approach, and defend them if necessary by claiming reliance upon
established industry practices.
4.4.3 The Extraterritorial Temptation
It is clear that the framers of the Act did not intend for these two requirements to
apply only in the United States’ territorial sea, let alone in port. Both are the sorts of
operational practices that would, from the regulator’s perspective, ideally be
adhered to throughout each voyage, even while the vessel was on the high seas. If
the vessel finds itself under the scrutiny of the United States authorities they are
likely to enquire as to whether or not the surveillance system was running, and
129
46 USC 3507(f).
130
Stan Deno, Director of Operations, Cruise Lines International Association, correspondence
with the author (18 July 2012).
whether or not the crew access protocols were complied with, throughout the entire
voyage. If the vessel’s owner has failed to take any relevant measures, there is a risk
that it will be deemed to have committed an offence under the Act, even if the
failure to comply occurred well outside of the United States’ maritime zones.
This reflects the temptation for port states that expect high standards of shipping
such as the United States to extend their reach beyond the port context, and begin
examining the operation of vessels travelling to and from port. In situations such as
the one described here the state is essentially claiming that it will only take
enforcement action under the Act once a foreign vessel has entered its port, but it
is nonetheless interested in certain actions or events that may have occurred before
the vessel’s arrival. Should this be described as an exercise of extraterritorial
jurisdiction, with the port state attempting to govern actions taking place beyond
its territory, or is it simply a form of territorial jurisdiction, albeit one in which
certain extraterritorial activities take on a particular relevance? Whether such
questions invoke genuine legal distinctions, or represent merely a semantic attempt
to circumvent the flag state’s jurisdiction on the high seas, is a matter of growing
importance. Topics of great contemporary significance such as fisheries131 and fuel
consumption132 are making port states eager to assess vessel operations occurring
well outside their maritime zones, so that enforcement action can be taken in port.
Even operational requirements as seemingly innocuous as the Act’s could provide a
useful illustration of how such measures can be made more or less effective from an
international law perspective.
It is difficult to find an authoritative statement of international law touching on
the jurisdiction of a port state in relation to how a foreign vessel was operated while
on the high seas, or in another state’s maritime zones.133 This is not surprising,
taking into account the traditional primacy of the flag state, and the historical lack
of interest on the part of port states in regulating the operation of foreign vessels at
all. Even the idea of extraterritorial jurisdiction in general took a long time to
achieve credibility, with Justice Story of the United States Supreme Court stating in
an 1824 decision that “[t]he laws of no nation can justly extend beyond its own
territories, except so far as regards its own citizens. They can have no force to
131
See Molenaar, “Port State Jurisdiction to Combat IUU Fishing: The Port State Measures
Agreement” (2010).
132
See Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU
CO2 Emissions Trading Scheme for Ships” (2011); see also in the airline context Air Transport
Association of America v Secretary of State for Energy and Climate Change [2011] ECJ Case
C-366/10.
133
Mann simply suggests such an approach, if followed by every country, would lead to chaos:
Mann, “The Doctrine of International Jurisdiction Revisited After Twenty Years” (1984), 91.
control the sovereignty or rights of any other nation within its own jurisdiction”.134
Story’s approach, expanded upon in his academic work, was supported by numer-
ous legal scholars135 so that a strict territorial approach to jurisdiction (with the
exception of jurisdiction over a state’s nationals) came to dominate legal thinking
until the mid twentieth century.136
In the increasingly interconnected twenty-first century issues involving extrater-
ritorial jurisdiction have become far more common, arising in areas as diverse as
competition law, securities law, insolvency, tort and crime.137 The authors of a
report by the International Bar Association framed the issue in the following
way138:
Extraterritorial jurisdiction involves a fundamental dilemma. On the one hand, every state
has the right to regulate its own public order, so it is entitled to legislate for conduct
occurring within its territory. This principle is often considered to be a corollary of state
sovereignty. On the other hand, businesses and individuals are increasingly acting, and
producing effects, across state borders. In doing so they enliven the desire of states to assert
their laws extraterritorially, which often results in the application of two or more national
laws to the same conduct.
The same essential tension holds true in the context of the Act. As more United
States citizens take cruises aboard foreign-flagged vessels, the government has
become more anxious about the level of regulation on board those vessels and
sought to exercise more control over them. However, unlike the non-maritime
matters discussed in the report, the maritime sector has long been dealing with
conflicting jurisdictional interests, and has the advantage of a well-established
convention on such matters in the form of UNCLOS.
Accordingly, when the issue of extraterritorial claims to jurisdiction over vessels
is raised, most maritime lawyers would be quick to point out article 92(1) of
UNCLOS, which states that “[s]hips shall sail under the flag of one State only
and, save in exceptional cases expressly provided for in international treaties or in
this Convention, shall be subject to its exclusive jurisdiction on the high seas. [. . .].”
Surely, they would argue, this important provision speaks directly to the issue of
port state attempts to regulate vessel operations outside port limits?
134
The Apollon 22 US 362 (1824) (SC), 370; see also American Banana Company v United Fruit
Company 213 US 347 (1909) (SC).
135
See for example Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955),
331 and following.
136
Mann, “The Doctrine of Jurisdiction in International Law” (1964), 28–29.
137
See International Bar Association, Report of the Task Force on Extraterritorial Jurisdiction
(2008). There is no one set of rules on extraterritorial jurisdiction applicable to all areas of law,
instead it has been suggested that the international community must proceed subject-area by
subject-area: Committee on Extraterritorial Jurisdiction, “Final Report” (1996), 522.
138
International Bar Association Report of the Task Force on Extraterritorial Jurisdiction
(2008), 5.
4.4.4 UNCLOS and Vessel Operations
To begin assessing this issue it is first necessary to point out that most of the
provisions of UNCLOS make no distinction between laws affecting vessel
operations, such as how a vessel’s equipment is operated, as opposed to vessel
conditions, such as what equipment it is carrying.139 Instead, most jurisdiction-
related articles refer only to the underlying policy of a set of rules, such as safety or
protection of the environment, and combine this with a reference to a particular
maritime zone. For example, article 60 refers to safety zones around artificial
structures, and applies to the EEZ only. It does not restrict states’ discretion as to
how such laws might target the conditions or operations of passing vessels.
When rules governing vessel conditions are breached, port states are content to
wait until the vessel arrives in port and declare the problem to have arisen at that
point. However, where vessel operations are involved a geographical element
comes into play. The rule in question may have been breached as a result of
30 minutes of operational non-compliance or a single pollutant discharge, possibly
on the high seas or in another state’s maritime zone. Depending on the zone in
question, and the relevant jurisdictional provisions of UNCLOS, this could result in
an exercise of coastal state jurisdiction that is merely enforced in port.140 If on the
other hand there is no relevant provision extending the necessary coastal state
jurisdiction, port states may need to find more creative justifications for their
regulatory attempts, for example arguing that although they were evaluating vessel
operations in a particular area, the requirements were only being enforced against
those vessels that voluntarily arrived in port as a condition of port entry.
In order to explore the legitimacy of such arguments, the following section
assesses UNCLOS’s provisions on what can be regulated by port/coastal states in
respect of each maritime zone. The approach taken under the Convention sheds
light on the international community’s attitude to extraterritorial jurisdiction in the
maritime context.
4.4.4.1 Events in Port/Internal Waters
Any breach of a rule on vessel operations that occurs in port (or the state’s internal
waters), for example an unlawful discharge of waste, is treated in legal terms no
differently from the in-port breach of a rule on vessel conditions. The events in
question have all taken place comfortably within the port state’s territorial
jurisdiction.
139
There are a handful of conduct-specific provisions, but they relate to discrete circumstances
which are not relevant to merchant shipping, such as how submarine craft must be operated in the
territorial sea: UNCLOS, art 20.
140
Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 103.
4.4.4.2 Events in the Territorial Sea and Other Maritime Zones
The first relevant group of provisions in UNCLOS relate to the territorial sea,
particularly those dealing with innocent passage.141 These determine the extent to
which coastal states may regulate the conduct of vessels passing “through the
territorial sea”,142 and article 21 actually allows for more regulatory possibilities
where vessel operations are concerned than with vessel conditions. The latter are
limited by the restriction on laws imposing unilateral CDEM standards in paragraph
(2) of that article.143 This restriction does not prevent the unilateral regulation of
vessel operations, provided the relevant standard falls within one of the subjects
open to coastal state regulation under paragraph (1), such as navigation safety. For
example, the coastal state could not require passing vessels to carry a newly-
designed piece of radio equipment, but they could require the vessel to use its
existing radio to communicate its passage to a vessel traffic centre. However, the
articles relating to the territorial sea do not refer to any jurisdiction on the part of
coastal states to regulate vessel operations that occurred before arrival in this
maritime zone.144
The jurisdiction of the coastal state over vessel operations in the EEZ is even
more limited than in the territorial sea.145 The only non-environmental provisions
applicable to merchant shipping (as opposed to fishing or science146 vessels)
concern the coastal state’s jurisdiction to establish safety zones and navigation
regulations around artificial installations.147
Part XII of UNCLOS sets out a detailed group of environment-focused
provisions governing coastal state jurisdiction over vessels. For example, article
211(1) provides for vessel routeing systems, which certainly involve the regulation
of vessel operations, but without referring to any maritime zones. However, as the
provision relates only to internationally-agreed arrangements, there is little scope
for this to be used by coastal states to establish such systems outside of their
territorial sea or EEZ. Other provisions relevant to vessel operations include articles
210 and 216 dealing with dumping, a practice primarily defined as “any deliberate
141
UNCLOS, pt II, s 3.
142
See for example UNCLOS, arts 21(1) and 22(1).
143
For the distinction between CDEM standards and vessel conditions see Chap. 3, Sect. 3.3.3.1.
144
Compare the provisions on civil and criminal jurisdiction over individuals on board vessels:
UNCLOS, arts 27–28. Compare also articles 33 and 111 dealing with the contiguous zone and the
right of hot pursuit respectively, which only allow for enforcement action taken after a vessel has
committed an offence within the coastal state’s internal waters or territorial sea. No more extensive
rights are given in relation to international straits or archipelagic waters: see UNCLOS, pts III
and IV.
145
UNCLOS, pt V.
146
Part XIII of UNCLOS gives coastal states jurisdiction to regulate the conduct of vessels
engaged in marine scientific research in their territorial sea, EEZ, and above the continental
shelf: UNCLOS, arts 245–246.
147
UNCLOS, art 60.
disposal at sea of wastes or other matter from vessels, aircraft, platforms or other
man-made structures at sea”.148 These provisions provide a coastal state with the
authority to take regulatory and enforcement action in relation to dumping in its
territorial sea, EEZ, and onto its continental shelf.149
As far as vessel-source pollution is concerned, the principal provision of the
enforcement-focused Section 6, Part XII is article 217. This places an obligation on
flag states to provide for effective enforcement in relation to breaches of environ-
mental standards by their vessels “irrespective of where a violation occurs”, with
penalties sufficient to discourage such breaches “wherever they occur”.150 Article
220 is a more general provision dealing with the enforcement of environmental
standards by coastal states, including in their capacity as port states. It carefully
allocates varying levels of enforcement powers depending on the location of the
offending vessel. A vessel that is in port may be the subject of enforcement action in
relation to breaches that occurred within the territorial sea or EEZ,151 while more
limited powers are given in relation to vessels that are in the territorial sea or EEZ,
and have committed environmental offences within those areas.152 Finally, article
221 allows coastal states to take preventive measures beyond the territorial sea to
deal with pollution threats, an extension of the coastal state’s jurisdiction that is
tightly constrained by subject-matter and the scope of action described by the
article.153
4.4.4.3 Events on the High Seas and in Other States’ Maritime Zones
Unsurprisingly, given the wording of article 92(1) of UNCLOS quoted above, the
authority of states over vessel operations occurring outside of their maritime zones
is highly limited. There are exceptions relating to specified criminal acts on the high
148
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
(13 November 1972), art III(1)(a).
149
Although it is not completely clear from these provisions, it is expected that the flag state
(which has general responsibility for the subject under art 216(1)(b) of UNCLOS) will take
responsibility for any dumping on the high seas.
150
UNCLOS, art 217(1) and (8).
151
UNCLOS, art 220(1). The relevant laws must be adopted either “in accordance with
[UNCLOS] or applicable international rules and standards” on vessel-source pollution, but this
is not regarded as a significant restraint on port state enforcement jurisdiction: McDorman, “Port
State Enforcement: A Comment on Article 218 of the 1982 Law of the Sea Convention”
(1997), 310.
152
UNCLOS, art 220(2), (3), (5) and (6). An extended form of coastal state jurisdiction is provided
for in relation to ice-covered areas, where environmental standards more stringent than interna-
tional norms may be implemented and enforced within the EEZ; UNCLOS, art 234. See
Stephenson, “Vessel-Source Pollution under the Law of the Sea Convention: An Analysis of the
Prescriptive Standards” (1992), 132–133.
153
Stephenson, “Vessel-Source Pollution under the Law of the Sea Convention: An Analysis of
the Enforcement Standards” (1992), 280.
seas, notably piracy154 and illegal broadcasting,155 whereby warships may enforce
such laws against foreign-flagged vessels.156 However, the only provision relevant
to the regulation of merchant shipping operations is article 218, dealing with port
state enforcement following pollutant discharges.157 This provision relies upon
internationally agreed standards (principally those under MARPOL) to provide
the substance of what the port state is entitled to enforce. The inclusion of these
enforcement powers has been described by many scholars as an innovative and
novel development in international law,158 as well as an exception to the usual
international law restrictions on extraterritorial jurisdiction.159
4.4.4.4 Assessment of the Position Under UNCLOS
Applying these provisions to the Act, they do not appear to assist the United States
in extending its rules on vessel operations beyond the territorial sea. A vessel that
breached one of the Act’s operational requirements while engaged in innocent
passage through the territorial sea could not be subjected to enforcement at that
time, as the requirements discussed here do not fall within any of the subjects listed
in article 21(1) (such as navigation safety).160 However, once the vessel arrived in a
United States port the authorities could take enforcement action, relying on the
country’s coastal state jurisdiction, even though the operational breach in question
had ceased while the vessel was still in the territorial sea. The right of innocent
passage is an exception to the coastal state’s jurisdiction over its territorial sea,
allowing the vessel to pass through this zone without being unduly hampered, but it
would not provide the same vessel with any similar exemption once it had arrived in
port. However, in practice this position will account for only a limited range of
scenarios, and no equivalent basis of jurisdiction exists in relation to the EEZ or
beyond.
154
155
UNCLOS, art 109.
156
UNCLOS, art 110.
157
See generally McDorman, “Port State Enforcement: A Comment on Article 218 of the 1982
Law of the Sea Convention” (1997); Bang, “Port State Jurisdiction and Article 218 of the UN
Convention on the Law of Sea” (2009).
158
See for example Lowe, “The Enforcement of Marine Pollution Regulations” (1975), 640–641;
Kindt, “Vessel-Source Pollution and the Law of the Sea” (1984), 315; Boyle, “Marine Pollution
under the Law of the Sea Convention” (1985), 365; McDorman, “Port State Enforcement: A
Comment on Article 218 of the 1982 Law of the Sea Convention” (1997), 318–320; Churchill and
Lowe, The Law of the Sea (1999), 350; Valenzuela, “Enforcing Rules against Vessel-Source
Degradation of the Marine Environment: Coastal, Flag and Port State Jurisdiction” (1999), 496.
159
See Clingan, “Vessel-Source Pollution, Problems of Hazardous Cargo, and Port State Jurisdic-
tion” (1988), 277 and 281–282.
160
See above, Sect. 4.2.2.
A party in the United States’ position could argue in response to this that the
application and enforcement of the kind of operational requirements found under
the Act are different from the situations provided for in UNCLOS. It could be
suggested that UNCLOS is really dealing with situations where, for example, a state
sets out requirements on how vessels may operate in the vicinity of an artificial
structure in the EEZ, and then sends patrol boats out to enforce these. Requirements
of the kind found in the Act, on the other hand, involve an assessment of how a
foreign vessel was operated only if it chooses to visit a United States port. This does
not involve any hampering of navigation while the vessel is at sea,161 just in-port
enforcement.
However, the existence of article 218 provides evidence against such an argu-
ment. This article appears to represent the one situation in which the parties
negotiating UNCLOS were prepared to allow port states to regulate and assess
the extraterritorial conduct of foreign vessels. Even then the scope of action
permitted is very limited; enforcement can only take place in port, and can only
be based on internationally-agreed standards. Moreover, this article, along with the
enforcement powers detailed under article 220, may only be employed subject to
the procedural safeguards of Section 7, Part XII of UNCLOS, further demonstrating
the international community’s caution in extending such jurisdiction.162 By contrast
article 97 limits the scope of penal jurisdiction in relation to collisions on the high
seas to the flag state alone, preventing a port state from arresting the vessel in order
to charge the master with an offence.
In this author’s view, the combined effect of the UNCLOS provisions dealing
with port/coastal state jurisdiction over vessel operations suggests that the Conven-
tion was not intended to support the kind of ongoing conduct requirement
represented by the Act.163 However, it does not explicitly prohibit such
requirements either. The Convention sets out very specific situations in which a
coastal state may apply its laws to foreign vessels, and these primarily relate to
environmental and navigational safety matters. On this basis it is difficult to avoid
the conclusion that the drafters of UNCLOS intended for the flag state to be the
principal regulator of vessel operations unless otherwise stated.164
However, this is not necessarily the end of the debate, bearing in mind that while
UNCLOS is of central importance in this area of law, it is not the final word on all
161
162
Notable examples include the obligation to notify the vessel’s flag state of proceedings under
article 231, and the flag state’s ability to suspend a coastal or port state’s proceedings under article
228.
163
The same conclusion, at a more general level, is reached by Ringbom: Ringbom, The EU
Maritime Safety Policy and International Law (2008), 358–359.
164
forms of jurisdiction over vessels,165 and does not always provide a comprehensive
solution to each issue.166 This lack of a cohesive set of principles leaves a consid-
erable amount of room for a port state to try and assert that it is justified in
regulating aspects of a vessel’s operations outside of port. In the context of the
Act, this may mean the United States is able to point to an alternative basis of
jurisdiction.
4.4.5 Other Jurisdictional Avenues
There are several other bases of jurisdiction upon which a port state may try and
justify a regulation with extraterritorial implications, including the effects doctrine,
the protection/security principle, and the substantial connection approach.167 This
does not prevent the state from relying on port state jurisdiction to bring the vessel
within the scope of its laws to start with, or for any enforcement action. The role of
this additional jurisdictional basis would be to augment port state jurisdiction for
the portion of the voyage where the vessel was operating outside the state’s
territorial jurisdiction.
4.4.5.1 Permitted Unless Prohibited?
One response to the lack of explicit provisions dealing with port state jurisdiction
over extraterritorial vessel operations in UNCLOS is to argue, following the dicta
of the majority in the Lotus, that in the absence of an express prohibition states are
able to exercise jurisdiction over acts occurring outside of their territory.168
According to this argument, provisions such as those in the Act are lawful on the
basis that there is nothing in international law that specifically prohibits the
extraterritorial regulation by port states of matters such as shipboard surveillance
and crew access protocols.
165
See UNCLOS, arts 2(3), 19(1), 21(1), 34(2), 58(2), 87(1) and others, acknowledging the
applicability of “other rules of international law”, as well as the section of the preamble providing
that “matters not regulated by this Convention continue to be governed by the rules and principles
of general international law”.
166
Shearer has noted that “. . . there is no one theory of jurisdiction that underlies the various
powers and competences accorded to States under [UNCLOS]. Elements of territorial sovereignty,
nationality, and protective and universal principles of jurisdiction, recognised by customary
international law, are intertwined with special functionally-based State competences . . ..”:
Shearer, “Problems of Jurisdiction and Law Enforcement against Delinquent Vessels” (1986), 343.
167
Coverage” (2007), 228–229. For an outline of these approaches see Chap. 2, Sect. 2.1.4.
168
The Lotus (1927) 10 PCIJ Series A 4 (PCIJ), 18–19.
However, this line of reasoning has been deeply unpopular since the time the
Lotus was decided, and the weight of authority does not accord states the discretion
the PCIJ majority suggested was their due.169 Key criticisms include the failure of
this approach to account for situations of conflicting jurisdiction, or activities that
could potentially undermine the foundations of the international system.170 Fur-
thermore, the widely-used nationality basis of jurisdiction and even territorial
jurisdiction itself would be largely redundant if states could exercise extraterritorial
jurisdiction at their absolute discretion.171 Accordingly, while the position given in
the Lotus would provide a port state intending to put in place far-reaching shipping
regulations with some legal authority, it is difficult to imagine this argument
convincing the majority of affected states.
4.4.5.2 The Effects Doctrine
A further option, which may also be traced back to the Lotus decision, involves a
state regulating extraterritorial conduct on the basis that “one of the constituent
elements of the offence, and more especially its effects” took place within its
territory.172 The Lotus decision, which involved a high seas collision between a
French steamer and a Turkish collier, took this a step further as the “territory” in
question was held to be the Turkish vessel itself. While international agreements
subsequently overturned the application of this principle to collisions,173 the doc-
trine itself remains an arguable basis of jurisdiction.174 In the shipping context the
challenge for the port state is to show that the breach of its regulations, which it has
attempted to apply during all or part of a vessel’s voyage beyond the state’s
maritime zones, has had some relevant “effect” in the state’s territory.175
In the case of a large pollutant discharge this would be relatively straightforward,
as (putting to one side the fact this situation is comprehensively provided for in
169
See Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), 334; Mann,
“The Doctrine of Jurisdiction in International Law” (1964), 35; Lowe, “Jurisdiction” (2006),
340–342; International Bar Association, Report of the Task Force on Extraterritorial Jurisdiction
(2008), 8–9.
170
von Bogdandy and Rau, “The Lotus” (2006), para 18.
171
Jennings, “Extraterritorial Jurisdiction and the United States Antitrust Laws” (1957), 150–151.
172
The Lotus (1927) 10 PCIJ Series A 4 (PCIJ), 23.
173
See International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction
in matters of Collisions or other Incidents of Navigation (10 May 1952); Convention on the High
Seas (29 April 1958), art 11; UNCLOS, art 97. See also Jessup, “The United Nations Conference
on the Law of the Sea” (1959), 257–258.
174
See Brownlie, Principles of Public International Law (2003), 299; see also Akehurst, “Juris-
diction in International Law” (1972–1973), 152–153 (arguing that the “constituent element” test is
preferable to the overly-vague concept of “effects”).
175
Bearing in mind that a ship is no longer considered part of the state’s territory: see Chap. 2,
Sect. 2.2.1.
Part XII of UNCLOS) the “effect” would be the spread of, for example, an oil slick
from the high seas into the EEZ and other maritime zones. It is more difficult to link
vessel operations involving passenger safety (as in the Act), or employment
conditions (as discussed in Chap. 6), which do not leave an oily trail of evidence.
Rather the “effect” that the port state is attempting to identify might be some
kind of harm to a passenger or crewmember. For example the legal counsel for
CLIA suggested in his submission before the Congressional subcommittee: “a
nation has jurisdiction over the citizens of its territory and a nation has jurisdiction
over crimes that have an effect in its territory when the victim returns here.”176 This
is an artificial reading of the effects doctrine, and the situation described is more
closely aligned with the idea of the passive personality principle, i.e. that states can
claim jurisdiction over crimes against their nationals.177 It has nonetheless been
applied in United States domestic law, with jurisdiction over an offence on board a
Panamanian-flagged cruise ship in Mexican territorial waters being justified on the
basis of the “territorial principle” because the offence had “effects” in the United
States, namely the FBI’s need to investigate the offence, the trauma suffered and
counselling required by the victim (a United States citizen).178
Another creative approach to the doctrine from the United States may be found
in a prosecution of Royal Caribbean Cruises for breaching the country’s oil
pollution regulations. The United States District Court indicated that the effects
doctrine could be used in cases involving documents such as an oil record book
falsified outside the United States, but used within it, on the basis that this means
“the [Coast Guard]’s function is compromised and the laws that agency seeks to
enforce”.179 It has since been suggested that the relevant effect could have been
more clearly described as the (attempted) speedy clearance of United States inspec-
tion procedures, simultaneously avoiding various liabilities.180 However,
arguments of this kind avoid the critical notion that “[w]hat the law considers
relevant is, as a rule, the necessary legal effect, not the ulterior effect economically
or socially”.181 In the case of a falsified oil record book, the prosecuting state can
simply rely on the territorial principle underlying its port state jurisdiction, as a
vessel condition has been breached in port.182
176
tion and Infrastructure, United States House of Representatives, Crimes Against Americans on
Cruise Ships (2007), 55.
177
See International Bar Association, Report of the Task Force on Extraterritorial Jurisdiction
(2008), 146–149. The submission was not wrong in the sense that the United States does claim
jurisdiction in the situations counsel was describing: see 18 USC 7.
178
United States v Neil 312 F 3d 419 (2002) (CA, 9th Circuit), 422. The Court also found that
jurisdiction was justified on the basis of the passive personality principle.
179
United States v Royal Caribbean Cruises Ltd 11 F Supp 2d 1358 (1998) (DC, South
Florida), 1364.
180
Gehan, “United States v Royal Caribbean Cruises Ltd: Use of Federal ‘False Statements Act’ to
Extend Jurisdiction over Polluting Incidents into Territorial Seas of Foreign States” (2001), 174.
181
182
See below Sect. 4.4.7.
Where operational requirements under the Act are concerned the effects doctrine
is not off assistance to the United States. If a surveillance system is not maintained
during a cruise, no legally significant “effect” will be felt within the its territory,
even if some crime or tragedy subsequently went unnoticed on board. Similarly if a
vessel failed to operate an adequate policy for crew access to passenger cabins, the
relevant effects would be felt only by the people concerned at that time and place,
not back in the United States.
The effects doctrine has an even narrower scope of application if the requirement
for a “constituent element” to take place within the territory is adopted, as it has
largely been developed in connection with crimes against persons, or involving
obvious physical damage to property,183 rather than breaches of the kind of
technical regulation found within the Act and other industry-specific legislation.
The offences within the Act are strict liability, relating only to the failure to
maintain the system or policy in question, without any damage or other
requirements.184 They are not easily broken down into elements like the classic
“bullet fired across the border” example.
McDorman, writing on article 218 of UNCLOS, argued that a “degree of
conservatism concerning the exercise by States of extraterritorial jurisdiction
based on effects is warranted because it is inevitable that large States (e.g., the
United States) are always willing to extend their jurisdictional reach to the detri-
ment of smaller, neighboring States (e.g., Canada)”.185 A restrained approach of
this kind is important. Any lawyer can describe a convincing “effect” following on
from a regulatory breach. To prevent the doctrine being used to support excessive
claims to extraterritorial jurisdiction it is necessary that the concept be restricted to
effects of legal significance. On this basis, the effects doctrine is unlikely to be of
assistance in justifying the application of the Act’s operational requirements to
vessel operations beyond the port, or indeed most other maritime regulatory
measures not directly connected with the vessel’s environmental standards.
4.4.5.3 Protective/Security Principle
The protective/security principle applies only to the security of the state concerned,
as opposed to passengers on board a cruise ship.186 The argument that the mainte-
nance of surveillance systems on board cruise ships protects the security of the
United States is a weak one, even if those systems have the potential to record
183
See Mann, “The Doctrine of Jurisdiction in International Law” (1964), 39.
184
46 USC 3507(h).
185
Convention” (1997), 310 and 321.
186
See Advisory Committee of the Research in International Law, “Jurisdiction with Respect to Crime”
(1935), arts 7 and 8; Lauterpacht, International Law: A Treatise by L Oppenheim (vol 1, 1955), para 147;
Akehurst, “Jurisdiction in International Law” (1972–1973), 157–159; Brownlie, Principles of Public
International Law (2003), 302–303.
serious shipboard crimes. Nothing in the wording or legislative history of the Act
suggests that its operational requirements were intended to address national security
concerns. The issue of piracy or terrorism in relation to cruise ships was touched
upon during the subcommittee hearings,187 but never substantively addressed, and
certainly not in relation to the operational requirements discussed here as opposed
to the country’s criminal jurisdiction more generally.
4.4.5.4 Substantial Connection
During the preparation of the Act the legislators were well aware that, despite being
flagged in foreign countries like Liberia, the international cruise industry is primar-
ily a United States interest. As one Representative argued before Congress188:
If U.S.-based cruise ship companies who own and operate foreign-flagged passenger
vessels want to access millions of Americans who travel on these ships, they should be
required to implement simple, proper safety and security improvements for all travelers.
As well as summarising the basic policy behind the United States legislature’s
use of port state jurisdiction, this passage also demonstrates the scepticism with
which the legislators rightly viewed the flag state element of the cruise industry. If
the cruise lines themselves are predominantly based in the United States, and
primarily carry passengers to and from the United States, then could it be argued
that each voyage has a sufficiently substantial connection to the United States to
regulate aspects of vessel operations affecting those passengers during voyages to
and from American ports? Why should the economic considerations that govern
flagging-out be permitted to outweigh matters such as passenger safety and secu-
rity, merely on the basis that flag state jurisdiction has traditionally governed such
matters, if flag states are not adequately exercising this authority?
The concept of jurisdiction based on a “substantial connection”, which in this
context focuses on a foreign vessel’s connections to the port state in order to justify
more extensive claims to jurisdiction over it,189 is not expressly invoked on the
wording of the Act. The United States did not choose to emphasise the strong
connections between the country and much of the cruise industry to justify a greater
reach over the actions of cruise vessels at sea by framing the legislation in a manner
that focused on matters such as a vessel’s ownership and management. For
187
Americans on Cruise Ships (2007), 11, 45 and 244.
188
United States House of Representatives, “Cruise Vessel Security and Safety Act of 2010”
(30 June 2010), H5266 (statement of Representative Poe).
189
The list of situations in which specified shipboard crimes must be reported to the United States
authorities, which is in turned based upon the country’s Special Maritime and Territorial Jurisdic-
tion (18 USC 7) provides an example of a similar approach: 46 USC 3507(g)(3)(B).
example, the Act’s requirements could have been applied primarily to cruise lines
as opposed to cruise vessels.
This is not to suggest that states must expressly invoke the jurisdictional basis of
any legislation affecting foreign shipping for that basis to be relevant. Various
connecting factors are still likely to be relied upon by the authorities to help explain
the merits of a prosecution for instance,190 and the economic and physical
connections between the cruise industry and the United States remain an important
factor behind the Act’s acceptance by the industry. Nonetheless, without
incorporating such factors into the legislative scheme the primary basis of the
legislation remains, on its face, territorial jurisdiction. In terms of evaluating the
development of state practice in this area of international law the Act is therefore
less helpful as an example supporting a move towards a substantial connection
approach. By contrast, the Australia’s Fair Work Act 2009 unambiguously invokes
this approach, and the concept is discussed in more depth in Chap. 6.191
4.4.6 Port Entry Conditions
The foregoing discussion looks discouraging for any state in the position of the
United States, trying to justify a law that seeks to regulate aspects of a vessel’s
operations beyond port. However, there is hope in the phrase “port entry
conditions”.192 At this point in time, the potential scope of this concept represents
perhaps the most important legal issue surrounding port state jurisdiction. This idea
stems from the absence of any right to port access by foreign vessels, as discussed in
Chap. 2.193 Essentially, if it is possible to close ports to foreign vessels altogether,
then why should there be any limit on the conditions to which entry is subject, even
if those conditions relate to extraterritorial operations?
4.4.6.1 Scope of Prescriptive Jurisdiction
The ambiguity over the nature of port entry conditions arises from both a handful of
relevant provisions under UNCLOS, and conflicting state practice. The starting
point is article 25(2),194 which provides that:
190
See for example United States v Roberts 1 F Supp 2d 601 (1998) (DC, East Louisiana),
607–608.
191
192
The concept and the discussion surrounding it apply equally to port departure conditions, but
port entry is the phrase in common use: see Johnson, Coastal State Regulation of International
Shipping (2004), 35, fn 116.
193
194
See also UNCLOS arts 38(2) (international straits) and 211(3) (environmental conditions).
In the case of ships proceeding to internal waters or a call at a port facility outside internal
waters, the coastal State also has the right to take the necessary steps to prevent any breach
of the conditions to which admission of those ships to internal waters or such a call is
subject.
While it introduces the concept, albeit indirectly, this provision invokes no

limitations on the extent of the port state’s prescriptive jurisdiction as far as such
conditions are concerned. Given the absence of any right of port access under
customary international law, must a port state provide any further justification when
imposing a port entry condition? Or can that state deny the vessel access on any
grounds it chooses, regardless of whether the law in question fits within the
jurisdictional principles under UNCLOS and other rules of international law?
Take for example a state that decides to regulate foreign vessels operating with
exhaust emissions in excess of a unilaterally established standard. Although the
state might have some jurisdictional basis for applying this law within its maritime
zones, any law seeking to regulate these matters beyond those zones lacks any clear
jurisdictional basis. There is not likely to be a measurable “effect” on the state’s
own territory, and no applicable treaty. As a result the state decides that the most
effective approach is to declare that it is a condition of entry to its ports that any
foreign vessel must have been operating at a certain emissions level during the
entire course of its voyage to port. On the face of it there is nothing to prevent
the state from making such a law, beyond the doctrine of abuse of rights and the
requirement not to discriminate against particular flags.195 The state will argue that
it is not dictating the manner in which foreign vessels must be operated outside of its
maritime zones, and threatening enforcement action from its navy if they do not
comply. Instead it is merely exercising its right to deny port entry to vessels that
have not been operated in accordance with its stringent environmental standards.
This is the position supported by Johnson, who is of the view that port states may
set out requirements relating to extraterritorial conduct as a condition of port entry,
on the basis that affected vessels have voluntarily entered the territorial jurisdiction
of the port state and, provided the conditions are made public, have effectively
consented to any conditions that state decides to impose. She argues that the most
important limits on such behaviour are the economic and political costs for the port
state in introducing such conditions.196
Other authors see this as mere jurisdictional chicanery. The port state may not be
sending its warships out on to the high seas to control the behaviour of foreign
vessels, but it is nonetheless asserting prescriptive jurisdiction over this behaviour
once the vessel reaches port. After all, the lawful exercise of enforcement jurisdic-
tion must stem from the lawful exercise of prescriptive jurisdiction.197 This has led
195
Tasikas, “The Regime of Maritime Port Access: A Relook at Contemporary International and
United States Law” (2007), 44.
196
Johnson, Coastal State Regulation of International Shipping (2004), 41–43 and 52.
197
Bowett, “Jurisdiction: Changing Patterns of Authority over Activities and Resources” (1982),
3; Mann, “The Doctrine of International Jurisdiction Revisited After Twenty Years” (1984), 35.
authors such as Smith and Molenaar to argue that any port entry condition involving
extraterritorial conduct must be founded upon a recognised basis of jurisdiction.198
Otherwise, as Hajost put it in relation to a proposal to use port entry conditions to
enforce anchoring restrictions in the United States’ EEZ (which was ultimately
rejected), a state might set “a precedent which others might unilaterally use to load
numerous and burdensome restrictions onto the port state access concept”.199
The effect of this approach in practice would be, as Ringbom notes, to restrict the
concept of port entry conditions to those laws concerning vessel conditions.200 If
accepted it would simplify port state jurisdiction a great deal, as port states would
be denied all but the most limited extraterritorial reach in relation to their shipping
regulations. However, this author agrees with Ringbom that there is presently
insufficient authority under international law to prohibit a state from introducing
port entry conditions that lack such a justification (again provided they do not
offend against general principles, such as abuse of rights, and are not
discriminatory).201
There is some precedent for such an approach. For example in The Annapolis
Dr Lushington remarked that while the United Kingdom had no jurisdiction over
the actions of a foreign vessel on the high seas, it could make the taking on of a pilot
outside British jurisdiction a condition of port entry.202 A comparison may also be
drawn with operational conditions applied to foreign-flagged vessels licenced to
engage in a state’s coastal trade. These are relatively uncontroversial, even when
such vessels’ voyages take them beyond the licensing state’s territorial jurisdic-
tion.203 A more recent example can be seen in the adoption of ballast water
restrictions, initially on a unilateral basis by the United States (from the 1990s)204
198
Smith, State Responsibility and the Marine Environment (1988), 171–172 and 217; Molenaar,
“Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 229.
Molenaar links this position with the scope of a state’s enforcement jurisdiction, as discussed
below.
199
The proposal involved the Flower Garden Banks marine reserve. See Hajost, “The United
States Marine Sanctuaries Program and Freedom of Navigation” (1988), 293 and 298, n 59. The
approach may have been rejected on policy grounds, as it was noted that port entry conditions
would have no impact on vessels that anchored in the area, but did not then proceed to a United
States port (300).
200
Emissions Trading Scheme for Ships” (2011), 626.
201
Emissions Trading Scheme for Ships” (2011), 626–627; see also Ringbom, The EU Maritime
Safety Policy and International Law (2008), 355–357 and 369–371.
202
The Annapolis v The Johanna Stoll (1861) Lush 295; 167 ER 128 (HC Ad), 134–136; see also
Sea (1962), 96.
203
204
16 USC 4701 and following; Nonindigenous Aquatic Nuisance Prevention and Control Act
1990; National Invasive Species Act 1996.
and Australia (from 2001),205 and now by way of an international convention. This
provides that ballast water must be exchanged at least 50 nautical miles from the
nearest land (and ideally outside of a state’s EEZ) in order to prevent the spread of
harmful aquatic organisms.206 These examples suggest that in some circumstances
operational matters taking place beyond the port state’s maritime zones will be
legitimate targets for regulation.
Turning to the private law context, it is effectively a condition accepted upon a
foreign vessel’s entry into any port that the vessel might be arrested and held as
security in respect of a claim involving conduct that occurred far from that state’s
territory. For example, the widely ratified Arrest Convention of 1952 allows any
visiting vessel to be arrested in relation to a list of specified maritime claims,207
including matters that may relate to the vessel’s operations at sea such as personal
injury or lost cargo claims. The arresting state’s courts then have jurisdiction over
the merits of the case if its domestic law so permits, or in any of the following
cases208:
(a) if the claimant has his habitual residence or principal place of business in the country in
which the arrest was made;
(b) if the claim arose in the country in which the arrest was made;
(c) if the claim concerns the voyage of the ship during which the arrest was made;
(d) if the claim arose out of a collision [. . .];
(e) if the claim is for salvage;
(f) if the claim is upon a mortgage or hypothecation of the ship arrested.
Similar provisions are included in the 1999 Arrest Convention (which entered
into force in September 2011 but has only a small number of parties at present),
although the list of scenarios set out above has been replaced with a more general
right to assess whether jurisdiction over the merits exists.209 Both conventions also
allow for the arrest of sister ships in specified circumstances, meaning the vessel
held as security might not have any connection with the claim’s subject-matter
beyond the interest of its owner.210 The current international convention on civil
jurisdiction in the case of vessel collisions permits claims to be brought before the
205
Quarantine Act 1908, s 78A.
206
International Convention for the Control and Management of Ships’ Ballast Water and
Sediments (13 February 2004). The convention, is not yet in force. Both Australia and the United
States see their legislation as consistent with this instrument: Australian Government, Department
of Agriculture, Fisheries and Forestry, National Seaports Program: Australian Ballast Water
Management Requirements (November 2011), 3; Department of Homeland Security, Coast
Guard, “Standards for Living Organisms in Ships’ Ballast Water Discharged in US Waters”
(23 March 2012), 17284.
207
International Convention relating to the Arrest of Sea-Going Ships (10 May 1952), arts 1–2.
208
International Convention relating to the Arrest of Sea-Going Ships (10 May 1952), art 7(1).
209
This is subject to the parties’ agreement to litigate in another state or send the matter to
arbitration: International Convention on Arrest of Ships (12 March 1999), arts 1–2 and 7.
210
International Convention relating to the Arrest of Sea-Going Ships (10 May 1952), art 3;
International Convention on Arrest of Ships (12 March 1999), art 3.
courts of the defendant’s residence or place of business, or the place where the
vessel was arrested.211
These provisions demonstrate that, in the private law context, the international
community is familiar with port states’212 courts determining the legal
consequences of vessels’ extraterritorial operations.213 Of course there are
differences between a state’s assessment of extraterritorial conduct as a matter of
regulation, and its decision to analyse that conduct in an adjudicative setting in
accordance with the request of a private party. Nonetheless in international law
terms the state is making a claim to jurisdiction in both cases, and at an appropriate
level of abstraction the universally-accepted latter situation arguably lends strength
to the former. If nothing else the scenario demonstrates that the commercial
shipping world is used to dealing in one port with actions that took place well
beyond the geographical limits of the forum.
The foregoing discussion is not intended to suggest that port states should not
look for a strong jurisdictional basis upon which to found measures targeting vessel
operations, but the significant level of ambiguity in this area operates in their
favour. Port states can simply justify any new regulation by repeating the mantra
“you can visit my port, but on my conditions”, adding that freedom of navigation
will not be affected as enforcement will only occur in port,214 and that by imposing
such conditions they are only taking away from the affected vessels a privilege the
state may extend or retract at will,215 It is this link to the core international law
principle of territorial sovereignty, as opposed to the more nuanced provisions of
UNCLOS, that provides their strongest argument. The port state can frame the
argument as one about what it can do in relation to its sovereign territory, as
opposed to what foreign vessels can do on the high seas.216
Examples from recent state practice that support this position on prescriptive
jurisdiction are discussed below, but first it is necessary to address certain
arguments relating to the extent of a port state’s enforcement jurisdiction where
port entry conditions are concerned.
211
International Convention for the Unification of Certain Rules Concerning Civil Jurisdiction in
matters of Collision (10 May 1952), art 1. Jurisdiction is also available to the state in whose port or
internal waters the collision occurred.
212
The conventions simply allow arrest to occur “in the jurisdiction” of a state, but in practice this
will occur when the vessel is in port as opposed to in the territorial sea: see International
Convention relating to the Arrest of Sea-Going Ships (10 May 1952), art 2.
213
See McDougal and Burke, The Public Order of the Oceans: A Contemporary International Law
of the Sea (1962), 95–96.
214
UNCLOS, art 87.
215
Treves also appears to support this view: see Treves, “Jurisdiction over Vessels in the Areas of
Pollution and Fisheries: General Report” (2010), 4, 7 and 17.
216
See similarly Lowe, “The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and
the Search for a Solution” (1985), 734–735.
4.4.6.2 Scope of Enforcement Jurisdiction
Having accepted the possibility that a port state might introduce a port entry
condition relating to a foreign vessel’s extraterritorial conduct, questions arise as
to the scope of the state’s enforcement jurisdiction. Article 25(2) of UNCLOS
permits a coastal state to take action within what is most likely to be its territorial
sea in order to prevent breaches of port entry conditions, rather than waiting for the
vessel to arrive in port. Such enforcement action might be important to a state that
was trying, for example, to keep a harmful shipborne organism from its shores,
meaning the aim of the regulation it was relying on would be thwarted if a vessel
was allowed to enter port.217 However, the position is not so clear if the law in
question related to a matter of extraterritorial vessel conduct.
This is primarily due to the existence of article 218. As noted above, this
provision has been described by many authorities as a novel extension to port
state jurisdiction, allowing port states to prosecute foreign vessels for pollutant
discharges that may have occurred on the high seas or in another state’s maritime
zones. Moreover, this extension of a port state’s enforcement jurisdiction is subject
to conditions under Section 7, Part XII of UNCLOS. Comparing this situation with
the notion of a port entry condition not related to pollutant discharges has led
commentators to question whether the only legitimate sanction for breaching such a
condition is denial of port entry, or whether the port state may use a full range of
enforcement options (e.g. detention of a vessel and criminal fines). If the enforce-
ment jurisdiction represented by article 218 is exceptional and subject to
safeguards, then how could an equivalent law that is not based on this provision
legitimately be enforced?218
Relying on the wording of article 25(2), which permits states to “prevent” the
breach of their port entry conditions, Molenaar has distinguished between two
categories of enforcement measures available to port states. The first category
involves denying vessels benefits to which they have no entitlement, such as port
entry, the use of port services (including refuelling), or the landing of cargo. The
second category covers more onerous actions such as detaining a vessel or the use
of monetary penalties (including confiscation of the vessel and its cargo) to punish
violations of domestic law.219
Molenaar discusses several examples of state practice to demonstrate that, where
port entry conditions are concerned, the enforcement of those conditions will
usually be restricted to actions falling within the first category.220 Although its
217
See for example in the pollution context UNCLOS, art 221.
218
Coverage” (2007), 235–237.
219
age” (2007), 229.
220
age” (2007), 233, 235 and 237, see also Ringbom, The EU Maritime Safety Policy and Interna-
tional Law (2008), 370.
regulatory framework operates within the context of international agreements that

are beyond the primary scope of this work, a notable example is international
fisheries law. The fisheries sector has relied upon vessel entry conditions, backed
up by denial of access to port/port services, to combat illegal and unregulated high
seas fishing.221 The port state’s primary concern may be that the fish carried within
a particular vessel have been caught in an unlawful or unregulated manner on the
high seas, but its best option in jurisdictional terms may be to rely on its ability to
deny access to port and port services. Unable to offload its catch, the vessel
operator’s aims have been at least partially thwarted, and they will hopefully decide
to comply in future. By contrast, Molenaar notes that the United States’ Oil
Pollution Act does not follow this approach in its drafting, including both denial
of entry and criminal sanctions in its enforcement provisions.222 Furthermore, it is
unclear whether the state practice favouring a “denial of entry only” approach has
been based on considerations of law or merely policy.223
If one accepts the position on prescriptive jurisdiction favoured in the previous
section, as well as Molenaar’s approach to enforcement jurisdiction, the position
reached leads to a certain mismatch between a state’s prescriptive jurisdiction and
its enforcement options where extraterritorial conduct is concerned. As Ringbom
has noted224:
A somewhat paradoxical situation seems to result, in which it is easier for a State to defend
its right to refuse entry to its ports for non-complying ships than to find a legal basis for
enforcing those conditions by means of other sanctions once the ship has actually entered.
This might seem to be going against the logic of greater force, in particular if the refusal of
access is considered to include the ‘banning’ of a ship from access to the ports of the State
or region. Yet it is difficult to avoid this conclusion if the right to refuse access is accepted
as belonging to the enforcement measures available to port States, which generally seems to
be the case.
221
See for examples Convention for the Prohibition of Fishing with Long Driftnets in the South
Pacific (24 November 1989); Agreement on Port State Measures to Prevent, Deter and Eliminate
Illegal, Unreported and Unregulated Fishing (22 November 2009). For discussion see Rayfuse,
Non-Flag State Enforcement in High Seas Fisheries (2004), 335–337; Rayfuse, “Regulation and
Enforcement in the Law of the Sea: Emerging Assertions of a Right to Non-Flag State Enforce-
ment in the High Seas Fisheries and Disarmament Contexts” (2005), 186; Molenaar, “Port State
Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage” (2007), 233–235; Oli-
ver, “Legal and Policy Factors Governing the Imposition of Conditions on Access to and
Jurisdiction over Foreign-Flag Vessels in US Ports” (2009), 299–303; Molenaar, “Port State
Jurisdiction to Combat IUU Fishing: The Port State Measures Agreement” (2010).
222
age” (2007), 232–233. See for example 33 USC 3716a.
223
age” (2007), 235.
224
Emissions Trading Scheme for Ships” (2011), 627; compare Shearer, “Problems of Jurisdiction
and Law Enforcement against Delinquent Vessels” (1986), 326, noting that in some pollution-
specific situations expulsion from the territorial sea is more difficult for a coastal state to justify
than boarding, arresting and prosecuting a vessel, underlining “the doctrinal insecurity of the
territorial sea”.
There is a potential advantage in this restricted approach to enforcement for

those wary of expanding port state influence, as it means a port state can take only
very serious steps (i.e. turning a vessel away from port, or even banning it
altogether) in relation to extraterritorial vessel operations. As a result both the
vessel operator and the port state lose out on trade opportunities, but the right of
the port state to deny entry is maintained where certain conduct offends against its
core principles. In addition, the enforcement jurisdiction outlined by Molenaar
provides for a level of certainty as to the limits of port state jurisdiction more
generally.
However, in this author’s view port states are unlikely to observe this restrictive
approach to enforcement jurisdiction where port entry conditions are concerned,
just as they are unlikely to accept the limited approach to their prescriptive
jurisdiction. While Molenaar’s interpretation of the relevant provisions of
UNCLOS has persuasive elements, it has two significant weaknesses that are likely
to dissuade legislators from following it in practice. The first links back to the same
idea as that expressed in relation to prescriptive jurisdiction, namely that a vessel
entering port must comply with the state’s conditions or suffer the prescribed
penalty, whatever that may be. Arguing from this basis, law-makers may attempt
to explain away article 218 of UNCLOS as an internationally-agreed maximum
standard for the enforcement of extraterritorial pollutant discharges that was not
intended to have any significant on territorial jurisdiction more generally.
The second argument is grounded in the principle of proportionality,225 and links
back to the paradox identified by Ringbom. It is debatable whether an interpretation
that compels a state to use only the stringent penalty of denial of port access,
regardless of the circumstances surrounding the offence, should be supported. If a
vessel commits only a minor and temporary breach of a port state’s port entry
conditions, then should international law not direct that state to effect a more
proportionate response, such as the levying of a small fine? In addition to its
consistency with an important general principle of law, this would have the added
advantage of reflecting the commercial priorities of port states and vessel operators,
both of whose trading interests would be negatively affected if a vessel is barred
from port without good cause.
Provided laws governing extraterritorial operations are carefully tailored, mean-
ing enforcement on a day-to-day basis is unobtrusive enough to compel compliance
without giving rise to any international protest, then in this author’s view these
arguments are likely to gain ground over time by way of a growing body of state
practice. They may not be attractive from the perspective of a legal analysis of the
UNCLOS regime, but they will appeal to regulators who prefer to deploy a
proportionate range of enforcement options in their legislation. The potential for
such developments, and what they might eventually mean where customary inter-
national law is concerned, must first be set against the background of recent state
practice in this area.
225
4.4.6.3 Recent Developments in State Practice
Examples of states attempting to regulate the extraterritorial operations of foreign

vessels are not numerous, but several recent developments suggest a growing
interest in the potential of such laws. For example, the United States has recently
discussed port entry conditions at the international level, without any suggestion of
a limit as far as the prescriptive or enforcement jurisdiction of the concept is
concerned, in relation to compulsory pilotage regimes in international straits.
The matter can be traced back to Australian practice, when in 2006 a compulsory
pilotage regime was introduced in respect of the Torres Strait.226 This regime has
been controversial, first because it applies to an international strait subject to Part III
of UNCLOS, and second because the IMO declaration designating the Torres Strait
part of the Great Barrier Reef Particularly Sensitive Sea Area (PSSA) was recom-
mendatory only in relation to foreign vessel compliance with Australia’s pilotage
regime.227 The relevant Australian legislation contains only one offence, that of
navigating without a pilot in a compulsory pilotage area,228 which does not rely
exclusively on port state jurisdiction, and many commentators believe this
represents an excessive claim to jurisdiction.229 In response to this both the United
States and Singapore protested, until Australia announced that it would only take
enforcement action if an offending vessel entered an Australian port.230
Although Australia has not amended its legislation to reflect this position, this
statement has satisfied the United States, which has recently promoted a similar
approach in diplomatic correspondence with France and Italy. The United States
suggested that any future pilotage regime applicable to the Strait of Bonifacio could
be enforced as a condition of port entry (it continues to argue that there is no legal
basis under UNCLOS for mandatory pilotage regimes to be otherwise enforced in
226
See Navigation Act 1912, s 186I
227
International Maritime Organization, Marine Environment Protection Committee, Designation
of the Torres Strait as an Extension of the Great Barrier Reef Particularly Sensitive Sea Area
(22 July 2005).
228
Navigation Act 1912, s 186I; compare Great Barrier Reef Marine Park Act 1975, s 59B. See
also Australian Maritime Safety Authority, Revised Pilotage Requirements for Torres Strait
(16 May 2006); Marine Orders Part 54, Issue 4: Coastal Pilotage (No 10/2006), cl 9 and
appendix 2.
229
See Kaye, “Regulation of Navigation in the Torres Strait: Law of the Sea Issues” (2000), 126;
Roberts, “Compulsory Pilotage in International Straits: The Torres Strait PSSA Proposal” (2006),
106; Beckman, “PSSAs and Transit Passage: Australia’s Pilotage System in the Torres Strait
Challenges the IMO and UNCLOS” (2007), 343–346; Tan, “The EU Ship-Source Pollution
Directive and Recent Expansions of Coastal State Jurisdiction” (2010), 302; compare Bateman,
“The Compulsory Pilotage Regime in the Torres Strait: A ‘Melting Pot’ of Operational, Legal, and
Political Considerations” (2009), 284–286, arguing that the legal position is sufficiently unclear
for the measure to be justifiable on balance.
230
Australian Maritime Safety Authority, Further Information on Revised Pilotage Requirements
for Torres Strait (3 October 2006); see to the same effect Australian Maritime Safety Authority,
Bridge Resource Management (BRM) and Torres Strait Pilotage (17 April 2009).
relation to an international strait).231 The importance of this statement lies in both

the asserted lack of a valid jurisdictional basis to apply the pilotage requirement to
foreign vessels within the relevant maritime zone, as well as the absence of any
comments in the correspondence as to the enforcement measures that should be
used. The Australian approach promoted in the correspondence uses criminal
fines to dissuade would-be offenders,232 rather than an outright ban on entry to
Australian ports, an approach that is arguably more proportionate and undoubtedly
more appealing for both Australia and vessel operators in economic terms.
Related to the practice of compulsory pilotage are developments in the area of
mandatory vessel reporting systems. These are requirements that a vessel notify a
port state in advance of its intended arrival, as well as providing other information
such as cargo type. Most initiatives in this area to date have been developed in line
with IMO guidelines and SOLAS,233 and on the whole this form of port or coastal
state legislation does not represent any dramatic hampering of a vessel’s freedom of
navigation. However, one notable example of unilateral action in this area is the
EU’s requirement from 2000 that vessels notify EU ports of any dangerous or
polluting goods on board before arrival, ideally upon departure from the loading
port.234 In 2009 the EU added further requirements, so that vessels must provide
port states with a range of general information, such as their expected length of stay
in port, 3 days prior to arrival.235 Given the nature of shipping operations, it is likely
that the information required by these laws will need to be provided well before a
vessel comes near the port state’s maritime zones. Accordingly such requirements
involve an element of extraterritorial jurisdiction,236 which Proelss has argued
would be unjustifiable under international law if enforced only against a vessel’s
master.237
Although the justification for such measures as a matter of coastal state jurisdic-
tion when vessels are far from port is uncertain,238 reporting systems are well suited
to being applied as conditions of port entry. This is the approach taken by the United
231
Wilcox, Digest of United States Practice in International Law 2010 (2011), 520–522.
232
The offence is between 500 and 2,500 penalty units, with each penalty unit currently AU$110:
Navigation Act 1912, s 186I; Crimes Act 1914, s 4AA.
233
SOLAS, ch V, reg 11; International Maritime Organization, Guidance Note on the Preparation
of Proposals on Ships’ Routeing Systems and Ship Reporting Systems for Submission to the
Sub-Committee on Safety of Navigation (2003).
234
See Directive 2002/59/EC of 27 June 2002 establishing a Community vessel traffic monitoring
system and repealing Council Directive 93/75/EEC, art 13(2); compare SOLAS, ch VII, reg 1.
235
Directive 2009/16/EC of 23 April 2009 on port State control, art 9 and annex III.
236
Ringbom, The EU Maritime Safety Policy and International Law (2008), 253–256
237
Proelss, “The ‘Erika III’ Package: Progress or Breach of International Law?” (2012), pt D(II).
Proelss suggests that as the report may be made by an agent of the ship’s operator located within
the port state any jurisdictional problems may be avoided.
238
See Franckx, Vessel-source Pollution and Coastal State Jurisdiction: The Work of the ILA
Committee on Coastal State Jurisdiction Relating to Marine Pollution (1991–2000) (2001),
82–86.
Kingdom, for example, in implementing the reporting obligations established by

the EU Directive dealing with dangerous or polluting goods. A vessel that fails to
provide the information required is denied access to port or, if it provides false
information, has a fine imposed.239 The need for the possibility of a fine, which
unlike the use of oil record books for example relates to information that may have
been provided on the high seas as opposed to upon arrival in port,240 supports the
proportionality-based argument against the enforcement of port entry conditions by
way of access denial only. If the wrongdoing can only be discovered after the
vessel’s arrival then the port state has no real choice but to turn to other measures
unless it is prepared to order the vessel directly out to sea again. In many cases it
will be more proportionate and effective to address the wrongdoing in port by
means of a fine, or to order corrective action to be taken, especially if the harm that
the port entry condition was intended to prevent has already occurred.
Another recent example linking extraterritorial conduct and port entry
conditions comes from a decision in which the ECJ was required to assess the
regulation of greenhouse emissions in the international aviation context. The
decision arose from an EU requirement that airlines provide information related
to their fuel consumption when operating in and out of European airports.241 In
response to arguments that this effectively involved regulating the conduct of
aircraft while they were outside the territory of any Member State (including over
the high seas) the Court responded that while the Union could not govern the
actions of aircraft in an extraterritorial manner,242 the requirement to provide this
information could be viewed as a legitimate condition for entry into European
airports.243 In the framework used in this book the requirement in question can be
viewed as regulating a vessel condition, namely to provide accurate information on
arrival in port. In this author’s view the ECJ was correct in concluding that no
aircraft was expressly compelled to operate in a particular way outside of the EU’s
jurisdiction.244 When invoking the concept of port entry conditions the ECJ did not
appear to fix any special meaning to the term, merely using it to describe the
jurisdiction of a port state more generally. The decision to employ the phrase is
nonetheless significant, coming as it did in response to an allegation of an excessive
claim to (extraterritorial) jurisdiction.
239
The Merchant Shipping (Reporting Requirements for Ships Carrying Dangerous or Polluting
Goods) Regulations 1995, cls 6 and 15.
240
See below Sect. 4.4.7.
241
Directive 2008/101/EC of 19 November 2008 amending Directive 2003/87/EC so as to include
aviation activities in the scheme for greenhouse gas emission allowance trading within the
Community.
242
Air Transport Association of America v Secretary of State for Energy and Climate Change
[2011] ECJ Case C-366/10, paras 121–127.
243
[2011] ECJ Case C-366/10, para 128.
244
Compare Proelss, “The ‘Erika III’ Package: Progress or Breach of International Law?” (2012),
pt D(II), arguing that the scheme should be seen as an excessive claim to jurisdiction.
Turning to the United States’ Act on cruise vessel safety itself, the legislators
responsible were certainly aware of the concept of port entry conditions, and the
phrase was used to describe the jurisdiction of a port state more generally during its
passage through Congress.245 Although the wording of the Act is open to more
restricted interpretations, it appears that the United States continues to view port
entry conditions as a broad concept encompassing a state’s power to legislate for
extraterritorial vessel operations if those vessels are to visit a United States port.
Furthermore, the Act contains a denial of entry provision in addition to civil and
criminal penalties.246 If Molenaar’s reading of the scope of enforcement jurisdic-
tion for port entry conditions were adopted then the denial of access provision
would be the only enforcement option available in respect of the operational
requirements of the Act, insofar as they relate to actions that have occurred outside
of the United States’ territorial jurisdiction. In this way the denial of entry provision
could act as a form of jurisdictional escape route if any challenges under interna-
tional law arose.247
However, while it is left up to the authorities’ discretion as to how these
enforcement powers will be exercised, and no cases of enforcement are yet avail-
able,248 it seems unlikely in practical terms that a cruise ship carrying a full
complement of passengers would be denied access to a United States port for its
operator’s failure to maintain a surveillance system or follow its passenger cabin
access policy. As the summary of the first congressional hearing on cruise vessel
crime noted, the authorities are just as likely to report a breach of a ship’s internal
policies to the cruise line in question, which can then terminate the employment of
245
See for examples Subcommittee on Coast Guard and Maritime Transportation of the Commit-
tee on Transportation and Infrastructure, United States House of Representatives, Cruise Ship
Security Practices and Procedures (2007), 214 “. . . an offence committed against a U.S. national
on the high seas or in foreign territorial waters aboard a foreign-flagged cruise ship that embarked
from or intended to call on a U.S. port would be subject to the reporting requirement as a de facto
condition of port entry.” (testimony on behalf of the United States Coast Guard); United States
House of Representatives, “Cruise Vessel Security and Safety Act of 2010” (30 June 2010), H5266
“foreign-registered cruise vessels can be subject to some U.S. laws as a condition of entry into
U.S. ports.” (statement of Representative Oberstar).
246
46 USC 3507(h) and 3508(f).
247
However, the United States authorities do follow a thorough procedure when denying foreign
vessels access to port: Oliver, “Legal and Policy Factors Governing the Imposition of Conditions
on Access to and Jurisdiction over Foreign-Flag Vessels in US Ports” (2009), 319–320.
248
See similarly in relation to the Oil Pollution Act 1990: Molenaar, “Port State Jurisdiction:
Towards Comprehensive, Mandatory and Global Coverage” (2007), 232–233. Molenaar argues
that this is a crucial point, and that without evidence in the form of such actions it is not possible to
argue convincingly that state practice in this area has changed. Others have argued that the
enactment of rules carries a presumption of future enforcement, hence the practice of states
protesting at the time laws are enacted, and the potential impact of new rules on state practice
should not be overlooked: Maier, “Jurisdictional Rules in Customary International Law” (1996),
78 (Bianchi).
the person(s) responsible.249 The banning of a vessel for a relatively minor omis-
sion would be a disproportionate response, supported by neither the state, cruise
industry, nor the vessel operators. As noted above, this can be seen as a weakness in
the argument that port entry conditions require a narrower scope of enforcement
options. If its approach is already pushing the boundaries of prescriptive jurisdic-
tion in terms of extraterritorial vessel operations, a state is less likely to accept as
binding an interpretation that forces it to use only more severe enforcement powers.
4.4.6.4 The Future of Port Entry Conditions?
The use of “port entry conditions” and related phrases pre-dates UNCLOS,250 and
has often been adopted by various authorities as a convenient means of describing
any requirement imposed by way of port state jurisdiction (including those
targeting vessel conditions).251 For example, the United States Supreme Court
remarked in 1903 that252:
The implied consent of this government to leave jurisdiction over the internal affairs of
foreign merchant vessels in our harbours to the nations to which those vessels belong may
be withdrawn. Indeed, the implied consent to permit them to enter our harbours may be
withdrawn, and if this implied consent may be wholly withdrawn it may be extended upon
such terms and conditions as the government sees fit to impose.
In this sense the phrase is best understood as referring to the conditions that must
be met if a vessel is to enter port in full compliance with the port state’s laws, with a
failure to do so resulting in administrative actions or even prosecution by the local
authorities upon arrival. This non-technical use of the phrase lends support to the
argument that state practice does not allocate any special legal characteristics to
port entry conditions, as opposed to port state jurisdiction more generally. Not
every measure based on port state jurisdiction will have a “banned from port”
option as the final option for enforcement, but the ability of the port state to exclude
249
tion and Infrastructure, United States House of Representatives, Crimes Against Americans on
Cruise Ships (2007), ix.
250
See for example Sandberg v McDonald 248 US 185 (1918) (SC), 195, where the majority
suggested that Congress could have made subjection to United States employment laws a condi-
tion of entry to port, in the sense that any entry to port would be taken as tacit acceptance of this
requirement, and annul the pre-existing employment contracts of the crew on board.
251
See for examples Wilson, Elements of International Law by Henry Wheaton: The Literal
Reproduction of the Edition of 1866 by Richard Henry Dana Jr (1933), para 102; Bernhardt,
“A Schematic Analysis of Vessel-Source Pollution: Prescriptive and Enforcement Regimes in the
Law of the Sea Conference” (1980), 290–291; Stephenson, “Vessel-Source Pollution under the
Law of the Sea Convention: An Analysis of the Enforcement Standards” (1992), 276–277; Lagoni,
“Law and Uses of the Sea in a Change” (2009), 264.
252
Patterson v Bark Eudora 190 US 169 (1903) (SC), 178; see similarly Strathearn Steamship Co
Ltd v Dillon 252 US 348 (1920) (SC), 356.
non-complying foreign vessels if desired still informs law-making of this kind, in

the sense that the port state knows it can use this as a final resort.
As a result this author believes that in time it will not be possible to allocate any
specific legal meaning to the concept of port entry conditions in either prescriptive
or enforcement terms. The phrase will come to be seen as descriptive of port state
jurisdiction in general, recognising that the final resort of a state is to exercise its
right to ban offending vessels from its ports. Article 211(3) of UNCLOS can be read
in this way when it provides that “[s]tates which establish particular requirements
for the prevention, reduction and control of pollution of the marine environment as
a condition for the entry of foreign vessels into their ports or internal waters or for a
call at their off-shore terminals shall give due publicity to such requirements”,
while article 25 can be seen as a provision that merely confirms the enforcement
jurisdiction necessary to take preventative measures outside port limits. By contrast
the approach suggested by Molenaar would see two categories emerge; one for
rules on vessel conditions, and another for rules on vessel operations based on
accepted jurisdictional principles framed as port entry conditions (where limited
enforcement options would apply).
This author also argues that the developments relating to port entry conditions
discussed above suggest port state jurisdiction itself is evolving into a broader
concept than might previously have been predicted. Instead of article 218 being
held up as a special exception to the usual limits of extraterritorial jurisdiction, it
could in time be seen as merely a template for ambitious port state action in other
areas. As McDorman has noted in this context it was once possible to argue that
there is a “sanctity to flag State jurisdiction that operates to preclude port State
authority over foreign vessels for activities on the high seas or in the waters of other
States except in clearly defined circumstances”, but there is nonetheless a trend
away from this sanctity and towards further port state involvement.253 States may
be increasingly prepared to overlook “traditional” bases of jurisdiction when it
comes to exercising jurisdiction over the extraterritorial operations of visiting
vessels. Provided enforcement action is only taken when a vessel voluntarily arrives
in port, the state will argue that its laws were publicly available and the vessel
operator, having chosen to send a vessel into port, has to accept the legal
consequences.
The approach elaborated by Molenaar remains a possible interpretation of the
available international law on this subject, and is supported by a body of state
practice. It involves a more restrained approach to prescriptive jurisdiction that flag
states are likely to support, as well as limiting enforcement jurisdiction in a way that
might dissuade port states from over-reliance on entry conditions. However, there is
a slowly growing state practice to the contrary from legislators who are unlikely to
treat port entry conditions as a separate legal concept, given their ability to rely on
arguments of territorial sovereignty and a proportionate approach to enforcement
253
Convention” (1997), 310 and 321–322.
measures. This author is not suggesting for a moment that it would be a uniformly
positive development if all port states began attempting to regulate the operations of
foreign-flagged vessels prior to their arrival in port. Nonetheless, in the long term
the arguments in favour of port entry conditions being accepted without limitations
on port state prescriptive or enforcement jurisdiction appear stronger, and an
approach that could reign in port state authority in some cases may need to be
found elsewhere.254
4.4.7 Other Legislative Techniques
Another option for states that want to influence the extraterritorial operations of
vessels, while avoiding the problematic nature of such jurisdiction under interna-
tional law, is to adopt legislative techniques aimed at circumventing these
difficulties. The following three examples indicate that it is not always necessary
to regulate such operations directly, provided a law is carefully drafted. The key is
to re-frame any relevant provisions so that, where possible, they deal with a vessel
condition that can be assessed in port. For example, in the case of the Act, the
legislation could have been limited so that a working surveillance system was
installed, and a passenger cabin access policy in place, without requiring them to
be operated/complied with throughout the vessel’s voyage. This is less satisfactory
from the point of the regulator, who wants these measures acted upon rather than
being put in place and ignored, but it does avoid the potential for legal
complications.
Nonetheless, with some lateral thinking this approach can lead to the introduc-
tion of an effective “back-up” provision, as the United States has demonstrated with
its ongoing reliance on prosecutions directed at falsified entries of vessels’ oil
record books.255 The requirement to keep an oil record book was introduced
under MARPOL, and involves vessels recording the details of any discharges.256
While the pollutant discharge in question may have occurred outside the United
States’ maritime zones, the presentation of the falsified records results in an in-port
breach of a vessel condition,257 which puts the enforcing state in a relatively secure
254
255
See for example United States v Royal Caribbean Cruises Ltd 11 F Supp 2d 1358 (1998) (DC,
South Florida); four further examples are noted in American Society of International Law,
“Contemporary Practice of the United States Relating to International Law: International Oceans,
Environment, Health, and Aviation Law: US Criminal Sanctions for High Seas Pollution by
Foreign Vessels Entering US Ports” (2009).
256
MARPOL, Annex I, reg 17 and Appendix III.
257
See United States v Jho 534 F 3d 398 (CA, 5th Circuit), 403; see also Udell, “United States
Criminal Enforcement of Deliberate Vessel Pollution: A Document-Based Approach to
MARPOL” (2010), 280–281.
position under international law.258 An equivalent process could be used to negoti-

ate the problem of extraterritorial jurisdiction over vessel operations in other areas.
Once a document is presented certifying that something has or has not been done
outside the port state’s territorial jurisdiction,259 it can form the basis of a prosecu-
tion if proven to be false.
A related example comes from the EU airline case noted above, where informa-
tion on fuel emissions was required upon entry into an EU airport. The ECJ held
that this involved not the regulation of extraterritorial conduct, but instead the rule
simply took into account how the vessel had been operated en route.260 The relevant
distinction was explained by Advocate-General Kokott in the following way261:
The fact that the calculation of emission allowances to be surrendered is based on the whole
flight in each case does not bestow upon Directive 2008/101 any extraterritorial effect.
Admittedly, it is undoubtedly true that, to some extent, account is thus taken of events that
take place over the high seas or on the territory of third countries. This might indirectly give
airlines an incentive to conduct themselves in a particular way when flying over the high
seas or on the territory of third countries, in particular to consume as little fuel as possible
and expel as few greenhouse gases as possible. However, there is no concrete rule regarding
their conduct within airspace outside the European Union.
The approach can equally be applied to the maritime sector, with port states
taking into account the manner in which a vessel is operated on its way to port,
never stating that it must be operated in a fuel-efficient manner, but nonetheless
imposing higher charges on those whose fuel consumption information
demonstrates that their vessels fall below the port state’s standards. The failure to
provide accurate information on arrival will lead to a breach within port.
A further option is to draft an offence that is only “complete” upon entry into
port (similar in effect to a port entry condition). An example of this approach may
be found in Australia’s compulsory pilotage regime for the Great Barrier Reef
PSSA.262 The regime includes both an offence of navigating without a pilot in the
compulsory pilotage area,263 as well as two offences covering situations in which a
258
See also British Branch Committee on the Law of the Sea, “The Concept of Port State
Jurisdiction” (1976), 401–402; Anderson, “Port States and Environmental Protection” (1999), 339.
259
Anderson, “The Roles of Flag States, Port States, Coastal States and International
Organisations in the Enforcement of International Rules and Standards Governing the Safety of
Navigation and the Prevention of Pollution from Ships under the UN Convention on the Law of the
Sea and other International Agreements” (1998), 577.
260
[2011] ECJ Case C-366/10, para 128.
261
(Opinion of Advocate-General Kokott) [2011] ECJ Case C-366/10, para 147 (emphasis in
original).
262
International Maritime Organization Marine Environment Protection Committee, Protection of
the Great Barrier Reef Region (16 November 1990). See White, “Navigational Rights in Sensitive
Marine Environments: The Great Barrier Reef” (2000), 251–252.
263
Great Barrier Reef Marine Park Act 1975, s 59B.
vessel enters an Australian port having failed to take on board a pilot.264 These
latter two provisions use this port entry element to ensure “that there is some nexus
between the act and Australia when the provisions attempt to apply to foreign
vessels and crew in international waters”.265 Moderating the potential impact of this
law to some degree is a provision stating that the Act’s effect is subject to
Australia’s international law obligations.266
While an offence that is completed upon arrival in port arguably meets the
technical requirements of port state jurisdiction,267 it is a rather artificial tool when
applied to vessel operations. In reality the offending conduct relates to events that
took place at sea, for example when a vessel and the surrounding environment are
put at risk following the failure to take on board a pilot. This can be compared with
the position of a vessel that enters a port with substandard equipment, which
represents an ongoing breach of safety standards that can most easily be identified
and dealt with on arrival in port. Nonetheless, if a broad interpretation of a port
state’s jurisdiction in relation to port entry conditions (as discussed above) is
accepted then there is no substantive difference between such conditions and this
approach.268
4.4.8 Summary
As a general rule, most authors agree that international law does not permit a port
state to apply its laws to operational matters occurring outside of its territory.269
The potential bases of extraterritorial jurisdiction such as the protective/security
principle are not especially helpful in the shipping context, and UNCLOS provides
arguments against such geographically extensive regulations. However, once the
264
Great Barrier Reef Marine Park Act 1975, ss 59C and 59D; one deals with situations in which
the same master is on board, the other situations where a different master is aboard when the vessel
enters port. The position in relation to the more controversial Torres Strait pilotage regime
(discussed above) is different, as in that case the international community has only Australia’s
word as provided in two Marine Notices that it will enforce the penalty for failing to take a pilot on
board only after the vessel arrives in an Australian port. The relevant offence makes no such
distinction.
265
Ottensen, Sparkes and Trinder, “Shipping Threats and Protection of the Great Barrier Reef
Marine Park: The Role of the Particularly Sensitive Sea Area Concept” (1994), 514.
266
Great Barrier Reef Marine Park Act 1975, s 65.
267
See Lowe, “Jurisdiction” (2006), 353; Ringbom, The EU Maritime Safety Policy and Interna-
tional Law (2008), 367.
268
See for example Johnson, Coastal State Regulation of International Shipping (2004),
54 advocating such an approach in relation to ships striking whales en route to port.
269
See Degan, “Internal Waters” (1986), 26; McDorman, “Port State Enforcement: A Comment
on Article 218 of the 1982 Law of the Sea Convention” (1997), 310; McDorman, “Regional Port
State Control Agreements: Some Issues of International Law” (2000), 216; Tan, “The EU Ship-
Source Pollution Directive and Recent Expansions of Coastal State Jurisdiction” (2010), 296–298.
phrase “port entry conditions” is invoked, there are more authorities suggesting that
the position might not be so clear-cut.
One way of seeing this is that significant parts of UNCLOS reflect the interna-
tional community’s concerns over interference with navigation, and the threat of
having coastal states exercise an active level of control over ever-larger areas of the
ocean.270 The maritime states present at the negotiations did not want their vessels’
passage hampered by constant at-sea inspections from overly assertive coastal
states. Meanwhile, UNCLOS does not really deal with port state jurisdiction at
all, while there is a strong level of support for the absence of any right to port entry
under customary international law. Accordingly, if a state decides that entry to its
port is conditional on a vessel having been operated in a certain way before arrival it
should be permitted to do so. Nothing in UNCLOS prevents this, as the port state is
not interfering with navigation at sea – only those who choose to enter port are
affected.
Lending support to this position is the fact that fine distinctions between the legal
implications of rules governing vessel conditions versus vessel operations do not
necessarily equate with a particular law’s practical implications from an industry
perspective. A port state’s requirement that all visiting vessels be converted to carry
twenty solar panels each, requiring a fleet-wide refit costing many millions, would
be regarded as legitimate under international law, whereas a law demanding that the
master of a vessel shake the chief engineer’s hand at the mid-point of any interna-
tional voyage would be legally objectionable. It is difficult to make the legal
arguments for or against a certain example of port state jurisdiction when economic
factors and industry practice point clearly in the opposite direction.
Even though finding a well-established basis of extraterritorial jurisdiction for
any regulation of vessel operations may be more desirable, the lack of any strong
authority on this point means that port states are able to slowly extend their
jurisdiction to cover more and more aspects of such operations with arguments
based on territorial jurisdiction.271 Careful framing of requirements can minimise
any questions of extraterritoriality, and indeed almost any matter could be reduced
to a requirement that a certificate stating “X has been done on the high seas” must
be signed upon entry to port. Through such methods rather bold legal developments
become feasible, especially if the port state is economically powerful and the scope
of their law is uncontroversial from an industry perspective.
The two provisions of the Act that purportedly regulate aspects of a vessel’s
operations throughout the vessel’s voyage to port, namely those involving vessel
surveillance systems and crew access to passenger cabins, illustrate this. Although
this author believes such measures are justifiable as port entry conditions, either
270
See Mensah, “Foreword” (2000), viii.
271
Recently Molenaar has noted in the context of international fisheries regulation that the precise
extent and implications of any extraterritorial port state jurisdiction is still a matter of debate, and
may yet see port states in a position to regulate the actual conduct of vessels on the high seas in
future, see Molenaar, “Port State Jurisdiction to Combat IUU Fishing: The Port State Measures
Agreement” (2010), 379–386.
requirement may be described as an excessive claim to jurisdiction by other states

taking a narrower view of port state jurisdiction. Whether or not this becomes an
issue at the international level depends largely on how the Act as a whole is
interpreted and enforced by the United States authorities. International protests
provide a good measure of an instrument’s validity in this uncertain field of
jurisdiction,272 but the absence of such protests arising from the Act’s operational
provisions arguably has much to do with their careful framing in accordance with
existing cruise industry practice.273 While the operation of cabin access policies
and surveillance systems may not be the most controversial of measures, perhaps
some day a cruise vessel will arrive in a port state with strong privacy laws strictly
limiting the use of surveillance cameras, or a murder will be committed by a crew-
member who took advantage of lax cabin access policies, and the matter will be put
to the test.
If the broad interpretation of port entry conditions preferred by this author is
ultimately adopted, then port states will have a powerful tool for entertaining their
extraterritorial temptations. Even if the legislation in question is not framed along
the lines of “comply with this or do not enter port”, the vessel’s implied acceptance
of the law upon entry, and the port state’s ability to expel the vessel if desired, will
provide a legal basis for the measure. Only time will tell whether such arguments
hold sway against more restrained interpretations of a port state’s jurisdiction.
4.5 Chapter Summary
The Act provides an ideal overview of the reasons that may drive a state like the
United States to take unilateral action in a specific part of the shipping sector, and
how it can frame such a measure to render enforceable existing industry practices
without causing too much controversy either within the regulated industry or
amongst maritime states. However, the keen interest of the United States authorities
in protecting their citizens abroad may result in yet more unilateral regulation of the
cruise industry. A Congressional hearing was held on 29 February 2012 on the
subject of cruise vessel safety, including a review of the implementation of the Act,
in light of the Costa Concordia incident off the coast of Italy in January 2012.274
Further hearings may arise from the loss of power aboard the Carnival Triumph,
which led to the ship and those aboard being stranded at sea for several days in
February 2013.
272
Lowe, “Jurisdiction” (2006), pp 353–354.
273
CLIA reported in February 2012 that its members are already in compliance with all effective
provisions of the Act: Subcommittee on Coast Guard and Maritime Transportation of the Com-
mittee on Transportation and Infrastructure, United States House of Representatives, A Review of
Cruise Ship Safety and Lessons Learned from the Costa Concordia Accident (2012), 49.
274
tion and Infrastructure, United States House of Representatives, A Review of Cruise Ship Safety
and Lessons Learned from the Costa Concordia Accident (2012).
Chapter 5
Port States Behind the Scenes: The European
Union’s 2009 Insurance Directive
This chapter primarily discusses the EU’s Directive of 2009 on shipowners’

insurance (the Insurance Directive),1 and its interaction with the Convention on
Limitation of Liability for Maritime Claims (the 1976 Convention) along with the
1996 Protocol to that convention (the 1996 Protocol).2
5.1 Background to the Directive
The Insurance Directive’s full title refers to “the insurance of shipowners for
maritime claims”, and in essence makes it compulsory for merchant vessels to be
insured at the level of liability provided for in the 1996 Protocol of the 1976
Convention when visiting EU ports. Member States were required to give effect
to the Insurance Directive in their domestic law by 1 January 2012.3
5.1.1 Legislative Background and Industry Response
Like many of the EU’s interventions in maritime policy, the origins of the Insurance
Directive can be traced back to the Erika and Prestige disasters of 1999 and 2002
respectively. It formed part of the ambitious “Erika III Package” of legislation,4 the
1
Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for maritime claims.
2
Convention on Limitation of Liability for Maritime Claims (19 November 1976); Protocol of
1996 to amend the Convention on Limitation of Liability for Maritime Claims of 19 November
1976 (3 May 1996).
3
Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for maritime claims, art 9(1).
4
For a summary see Chuah, “The Third Maritime Safety Package – Objectives and Challenges”
(2009); Proelss, “The ‘Erika III’ Package: Progress or Breach of International Law?” (2012).
118 5 Port States Behind the Scenes: The European Union’s 2009 Insurance Directive
proposals for which were produced in late 2005 and took three and a half years to
finalise. Along with the Insurance Directive the package included a complete
re-casting of the EU’s port state control programme,5 further rules relating to
classification societies,6 and amendments to the European vessel traffic monitoring
system.7 Directives on flag state obligations8 and accident investigations9 were also
developed, along with a Regulation bringing the Athens Convention on the Car-
riage of Passengers and their Luggage by Sea of 1974 (including its 2002 Protocol)
into force for the Member States.10
Outlining the aims of the Insurance Directive its recitals state that “[o]ne element
of Community maritime transport policy is to improve the quality of merchant
shipping by making all economic operators act more responsibly”,11 and that “[t]he
obligation to have insurance should make it possible to ensure better protection for
victims. It should also help to eliminate substandard ships and make it possible to
reestablish competition between operators.”12 The approach taken is supported with
reference to two other pieces of EU legislation, namely the contemporaneous
Directive on port state control, and the 2005 Directive dealing with vessel-source
pollution.13 There are also references to the IMO’s February 2000 resolution urging
shipowners to be properly insured,14 and an October 2008 statement by the Member
The first two Erika packages are discussed in Nesterowicz, “European Union Legal Measures in
Response to the Oil Pollution of the Sea” (2004).
5
Directive 2009/16/EC of 23 April 2009 on port State control.
6
Directive 2009/15/EC of 23 April 2009 on common rules and standards for ship inspection and
survey organisations and for the relevant activities of maritime administrations; Regulation No
391/2009 of 23 April 2009 on common rules and standards for ship inspection and survey
organisations.
7
Directive 2009/17/EC of 23 April 2009 amending Directive 2002/59/EC establishing a Commu-
nity vessel traffic monitoring and information system.
8
Directive 2009/21/EC of 23 April 2009 on compliance with flag State requirements.
9
Directive 2009/18/EC of 23 April 2009 establishing the fundamental principles governing the
investigation of accidents in the maritime transport sector and amending Council Directive 1999/
35/EC and Directive 2002/59/EC of the European Parliament and of the Council.
10
Regulation No 392/2009 of 23 April 2009 on the liability of carriers of passengers by sea in the
event of accidents; Athens Convention relating to the Carriage of Passengers and their Luggage by
Sea (13 December 1974, as amended).
11
Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for maritime claims,
recital 1.
12
recital 4.
13
recitals 2 and 5; Directive 2005/35/EC of 7 September 2005 on ship-source pollution and on the
introduction of penalties for infringements.
14
recital 4; International Maritime Organization, Guidelines on Shipowners’ Responsibilities in
respect of Maritime Claims (4 February 2000).
5.1 Background to the Directive 119
States recognising the importance of the 1996 Protocol to the Liability Convention
of 1976.15
As with other maritime legislation pre-dating the ratification of the Lisbon
Treaty the legal basis for the Insurance Directive within the European legal
structure was the broadly-worded article 80(2) of the Treaty Establishing the
European Community (now article 100 TFEU),16 which simply provided that the
Council may decide, by qualified majority, on appropriate provisions regarding sea
transport. The policy of eliminating substandard ships would also tie in with what is
now article 91(1)(c) TFEU,17 which provides for measures to improve transport
safety.
The original proposal and draft Directive were much more ambitious than the
version that ultimately entered into law. The Commission’s idea in 2005 was for a
major reform of the maritime civil liability system on the basis that the liability
regime of the 1976 Convention, even when combined with the 1996 Protocol, was
unsatisfactory.18 There was a belief that the existing scheme was too lenient on
shipowners, who could limit their liability unless intentional wrongdoing or sub-
jective recklessness were proven, and to levels that did not necessarily ensure
sufficient compensation from the perspective of victims. In response, the proposal
was to lower the threshold for unlimited liability to one of “gross negligence” and,
by introducing a form of compulsory insurance, have insurers weed out any
uninsurable vessels, thus reducing the number of substandard ships operating in
European waters. It would also assist in removing the estimated 5 % of vessels
visiting European waters that had no insurance cover, with positive effects on
competition amongst responsible shipowners.19
It was hoped that these moves would precede a general revision of the existing
international liability conventions, and that meanwhile the process of having
Member States ratify the 1996 Protocol would be sped up by including provisions
within the Directive to force their hands.20 The extent of the proposed insurance
was to be at least “double the ceiling” for liability in the 1996 Protocol, and an
additional aspect was to have the insurance cover the repatriation of seafarers in
15
recital 3; Council of the European Union, Statement by the Member States on Maritime Safety
(19 November 2008).
16
Treaty Establishing the European Community (consolidated version, 2006).
17
Treaty on European Union and the Treaty on the Functioning of the European Union
(consolidated version, 2010).
18
European Commission, Proposal for a Directive of the European Parliament and the Council on
the civil liability and financial guarantees of shipowners (23 November 2005), 3.
19
20
cases of abandonment.21 A right of direct action against the insurer was also
included for any party claiming compensation.22
The Committee of the Regions was supportive of the proposal, although it
sought to extend its scope,23 while the European Economic and Social Committee
was less certain, singling out the proposal for further comment in its report on the
Erika III Package. One of its concerns was that if the insurance requirements were
too high, and the cap on liability in situations of gross negligence was removed,
there was a greater risk of shipowners turning to “one-ship companies” to avoid
liability, given that the P&I clubs had stated that they were not prepared to provide
cover above the 1996 Protocol limits. The Committee recommended that a more
careful economic analysis of the impact of the proposal be carried out.24
The European Parliament’s Committee on Transport and Tourism wanted to
make the Directive even more extensive, partly on the basis that the limitation of
liability regime had become too lenient on the shipping industry at the expense of
the victims of maritime accidents.25 For example, it was argued that third party
victims, those “not directly involved in the maritime transport”, should benefit from
the changes to the liability regime to the exclusion of parties such as cargo
interests.26 An amendment compelling every Member State to ratify the 1996
Convention on Hazardous and Noxious Substances and the 2001 Convention on
Bunker Oil Pollution was also put forward,27 and accepted by the Parliament in its
legislative resolution.28 The Parliament also added a provision establishing a
“solidarity fund” to compensate third parties damaged by uninsured vessels,29
21
the civil liability and financial guarantees of shipowners (23 November 2005), 13 (draft arts 5 and 6).
22
the civil liability and financial guarantees of shipowners (23 November 2005), 15 (draft art 10).
23
European Union, Committee of the Regions, Opinion of the Committee of the Regions on the 3rd
Maritime Safety Package, 49–50.
24
European Economic and Social Committee, Opinion of the European Economic and Social
Committee on the [3rd Maritime Safety Package] (2006), paras 4.7.2–4.7.3.
25
European Parliament, Transport and Tourism Committee, Report on the proposal for a directive
of the European Parliament and of the Council on the civil liability and financial guarantees of
shipowners (6 March 2007), 18.
26
shipowners (6 March 2007), 20.
27
shipowners (6 March 2007), 6–7.
28
European Parliament, European Parliament legislative resolution of 29 March 2007 on the
proposal for a Directive of the European Parliament and the Council on the civil liability and
financial guarantees of shipowners (29 March 2007), 3 and 7 (draft arts 4 and 5).
29
financial guarantees of shipowners (29 March 2007), 14 (draft art 14).
although this initiative was promptly objected to by the Commission,30 and did not
resurface.
The draft Directive that was sent to the Council of the EU reflected a
far-reaching set of ideas that would depart significantly from the international
norms on limitation of liability in the maritime context. What emerged from the
Council’s deliberations was a far more restrained instrument of reform.31 The
proposed re-working of the liability regime was stripped away, leaving only
the compulsory insurance requirement now embodied in the Insurance Directive.
The Council argued that the establishment of EU rules on liability and seafarers’
repatriation would be counterproductive when parallel international obligations had
already been established. Rejected also were the provisions on the mandatory
ratification of the specified IMO agreements, which were replaced by a
non-binding declaration of the Member States’ governments.32 The draft Directive
prepared by the Council is essentially the form in which the Insurance Directive
now appears, including such additions as the link with port state control inspections,
the power of expulsion, and the “without prejudice” clause relating to other liability
conventions.33 The European Parliament accepted this version in March 2009.34
The International Group of P&I Clubs, commenting on the 2009 Directive in its
final form, noted that its members insured approximately 90 % of the world’s
ocean-going tonnage, and that the level of cover was “always more than adequate”
to meet the level of shipowner’s liability provided for under the 1976 Convention,
including its 1996 Protocol.35 However, it should be noted that this figure is based
30
European Commission, Amended Proposal for a Directive of the European Parliament and the
Council on the civil liability and financial guarantees of shipowners (24 October 2007), 4.
31
European Commission, Communication from the Commission to the European Parliament
pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common
position of the Council on the adoption of a Directive on the civil liability and financial guarantees
of shipowners (9 December 2008), 3.
32
Council of the European Union, Statement of the Council’s Reasons: Common Position adopted
by the Council with a view to the adoption of a Directive of the European Parliament and of the
Council on the insurance of shipowners for maritime claims (24 November 2008), 3; Council of
the European Union, Common Position (EC) No 29/2008 adopted by the Council on 9 December
2008 (2008), 11.
33
Council of the European Union, Statement of the Council’s Reasons: Common Position adopted
Council on the insurance of shipowners for maritime claims (24 November 2008), 5; Council of
the European Union, Common Position adopted by the Council with a view to the adoption of a
Directive of the European Parliament and of the Council on the insurance of shipowners for
maritime claims (24 November 2008); Council of the European Union, Common Position (EC) No
29/2008 adopted by the Council on 9 December 2008 (2008).
34
European Parliament, Legislative resolution of 11 March 2009 on the common position adopted
by the Council with a view to the adoption of a directive of the European Parliament and of the
Council on the insurance of shipowners for maritime claims (11 March 2009).
35
International Group of P&I Clubs, EU – Directive on the Insurance of Ship-owners for Maritime
Claims (Formerly the Civil Liability Directive) (press release, March 2009). When the more
ambitious initial proposal was released for consultation with industry bodies insurance companies
on tonnage, and with over 116,000 vessels in the world’s merchant fleet36 this still
leaves a significant number of vessels without such cover. The Group was generally
supportive of the requirement that Member States ratify the 1976 Convention and
its 1996 Protocol, and that vessels should be required to present evidence of
insurance upon entering a European port.37 Later in 2009 members of the Group
sent circulars to their members noting that some additional information would need
to be included on its certificates of entry to comply with the Directive, but that
members were already insured to the relevant levels.38
5.1.2 Scope of the Directive
The Insurance Directive applies to ships with a gross tonnage of 300 tonnes or
more,39 and provides that each Member State shall require the shipowners of ships
flying its flag to have insurance covering those ships.40 Both “shipowner” and
“insurance” are defined terms, the first relating to “the registered owner of a
seagoing ship, or any other person such as the bareboat charterer who is responsible
for the operation of the ship”.41 “Insurance” is defined as42:
[I]nsurance with or without any deductibles, and comprises, for example, indemnity
insurance of the kind provided by members of the International Group of P&I Clubs, and
other effective forms of insurance (including proved self insurance) and financial security
offering similar conditions of cover.
“Indemnity insurance” of the kind required here, and offered by P&I clubs, can
be distinguished from “liability insurance” in that it does not place the insurer under
apparently “emphasised the benefits of such a measure”, whereas shipowners were sceptical:
36
This is the number of merchant vessels over 100 gross tonnes currently detailed in the online IHS
Fairplay World Shipping Encyclopedia available at www.ihs.com. The International Group of
P&I Clubs refers to a figure of 85,000 vessels in its annual report: International Group of P&I
Clubs, Annual Review 2011/12 (8 February 2012), 3.
37
Compare Røsæg, “Compulsory Maritime Insurance” (2000), 181, noting that the insurance
industry is generally opposed to compulsory marine insurance schemes.
38
See for example UK P&I Club, Directive 2009/20/EC of the European Parliament and of the
Council of 23rd April 2009 on the Insurance of Shipowners for Maritime Claims (Circular 13/09,
11 December 2009), available at www.ukpandi.com.
39
Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for maritime claims, art 2
(1) and (2). It excludes warships and other non-commercial government ships.
40
art 4(1).
41
art 3(a).
42
art 3(b).
any obligation to pay claimants directly. Instead the indemnity insurance policy
will only reimburse the insured where they have incurred and discharged any
liability to a third party.43
The insurance level required is phrased as “equal to the relevant maximum
amount for the limitation of liability as laid down in the 1996 Convention” for
“each and every ship per incident”.44 This is sufficiently close to the 1976 Conven-
tion for ease of interpretation. The “relevant maximum” will depend on the vessel’s
tonnage as provided for in Chapter II of the Convention, and an “incident” will
equate to the term “distinct occasion” used in article 9.
The responsibility placed upon (Member State) flag states to enforce this insur-
ance requirement is then applied to foreign vessels by way of the following
provision (discussed in more detail below)45:
Each Member State shall require shipowners of ships flying a flag other than its own to have
insurance in place when such ships enter a port under the Member State’s jurisdiction. This
shall not prevent Member States, in conformity with international law, from requiring
compliance with that obligation when such ships are operating in their territorial waters.
Evidence of the insurance must be shown in the form of a certificate issued by

the insurance provider and carried on board ship.46 The certificate, which will be
checked by port states in accordance with the EU’s port state control
arrangements,47 must include basic information such as the vessel’s details, the
shipowner’s details, the insurance provider’s details and the type and duration of
insurance.48 If the certificate is not produced the Member State may, without
prejudice to its powers of detention under the port state control Directive, issue
an expulsion order to the ship. Following an expulsion order the vessel will be
refused entry into all Member State ports until a certificate becomes available.49
Each Member State is able to create its own system of “effective, proportionate and
dissuasive” penalties to deal with breaches of the Insurance Directive.50
43
Hazelwood and Semark, P&I Clubs Law and Practice (2010), 123.
44
art 4(3).
45
art 4(2).
46
art 6(1).
47
art 5(1).
48
art 6(2).
49
art 5(2).
50
For example, French legislation imposes a fine of €45,000 on persons who fail to comply with
the Directive’s requirements: Code des Transports, arts L5123-1 and L5123-6(I).
5.1.3 The Directive in Context
The EU’s use of port state jurisdiction in the regulation of foreign shipping has
grown rapidly when compared with other jurisdictions, and has been extensively
surveyed by Ringbom in his 2008 work on the Union’s approach to maritime safety
policy.51 The EU is in an excellent position to exercise its jurisdiction in this
manner given its ability to regulate some 1,200 coastal ports,52 which are visited
each year by approximately one third of the commercial vessels above 100 gross
tons in operation worldwide.53 Although the EU has only shared competence with
Member States in the transport context,54 the relevant provision of the TFEU leaves
ample room for developing initiatives at the Union level, stating only that
provisions for sea transport should be “appropriate”.55 One key example is the
EU’s move to accelerate the process of removing single-hulled tankers from
operation in 2002–2003.56 A further recent development is the EU’s introduction
of more stringent fuel quality standards for certain vessels visiting Member States’
ports,57 and there remains the possibility of an EU emissions trading scheme for
vessels.58
5.1.3.1 Pre-existing Compulsory Insurance Requirements
Regulations imposing a compulsory insurance requirement on vessel operators

have been introduced with increasing frequency, particularly since the start of
51
See Ringbom, The EU Maritime Safety Policy and International Law (2008), ch 5.
52
European Commission, Communication on a European Ports Policy (18 October 2007), 2.
53
Emissions Trading Scheme for Ships” (2011), 618. Eurostat recorded more than 2 million port
calls in the main EU ports (excluding France) in 2010: Eurostat, Maritime Ports Freight and
Passenger Statistics – Statistics Explained (2 March 2012), pt 1.14.
54
TFEU, art 4(2)(g) and Title VI.
55
TFEU, art 100(2).
56
See Regulation No 417/2002 of 18 February 2002 on the accelerated phasing-in of double hull
or equivalent design requirements for single hull oil tankers and repealing Council Regulation
(EC) No 2978/94, especially recital 9; compare Regulation No 1726/2003 of 22 July 2003
amending Regulation (EC) No 417/2002 on the accelerated phasing-in of double hull or equivalent
design requirements for single hull oil tankers, especially recitals 2–3; see also Ringbom, The EU
Maritime Safety Policy and International Law (2008), 346–352.
57
Directive 2005/33/EC of 6 July 2005 amending Directive 1999/32/EC as regards the sulphur
content of marine fuels; see Ringbom, The EU Maritime Safety Policy and International Law
(2008), 264–266 and 312–314. The Directive notably requires passenger vessels operating out of
EU ports to have a fuel sulphur content of 1.5 % (art 4a), as opposed to the current international
standard of 3.5 %: MARPOL, Annex VI, reg 14. The requirement for vessels to use fuel with a
sulphur content of 0.1 % while berthed at an EU port (art 4b) has no international equivalent.
58
See Ringbom, “Global Problem – Regional Solution? International Law Reflections on an EU
CO2 Emissions Trading Scheme for Ships” (2011).
this century, both on an internationally-agreed basis and as part of unilateral

initiatives.59 To date these developments have been limited primarily to the spheres
of environmental protection and the carriage of passengers, but with the primary
policy aim in both cases of trying to ensure that there will be compensation
available for victims of damage.60 Insurance regimes of this kind have always
been tied to a limitation of liability regime.61
At present there are only two international conventions in force that provide for
compulsory shipowners’ insurance, namely those dealing with pollution risks
arising from the carriage of oil either as a cargo (the Oil Pollution Convention),62
or in the form of bunkers (the Bunkers Convention).63 Three further conventions
containing similar requirements have been adopted by the international community,
but are not yet in force. These are the 1996 convention on hazardous and noxious
cargoes (now superseded by a protocol of 2010) (the HNS Convention),64 the 2002
protocol to the Athens Convention dealing with insurance for passenger claims
arising primarily from personal injury or death,65 and the Nairobi convention on
wreck removal (the Wreck Removal Convention).66 Of these, the Bunkers Conven-
tion and the Wreck Removal Convention have liability and insurance provisions
59
Røsæg notes that prior to 1969 insurance was “an internal matter for shipowners”: Røsæg,
“Compulsory Maritime Insurance” (2000), 179. Nonetheless, the basic idea is of considerable
vintage, see Bisschop, Limitation of Shipowner’s Liability and Compulsory Insurance of
Passengers (1927). An earlier convention without much practical impact (and which did not
enter into force) was the Convention on the Liability of Operators of Nuclear Ships (25 May 1962),
art III.
60
For example, after identifying the problem of bunkers-related pollution and the need to address
it the preamble to the International Convention on Civil Liability for Bunker Oil Pollution Damage
(23 March 2001) notes that “complementary measures are necessary to ensure the payment of
adequate, prompt and effective compensation for damage caused by pollution . . .”. For this and
other policy considerations see Røsæg, “Compulsory Maritime Insurance” (2000), 181–183;
Soyer, “Sundry Considerations on the Draft Protocol to the Athens Convention Relating to the
Carriage of Passengers and their Luggage by Sea 1974” (2002), 526–528; Zhu, Compulsory
Insurance and Compensation for Bunker Oil Pollution Damage (2007), 51–55; Damar, “Compul-
sory Insurance in International Maritime Conventions” (2009), 155–156.
61
See Steel, “Ships are Different: The Case for Limitation of Liability” (1995), 79 and 82.
62
International Convention on Civil Liability for Oil Pollution Damage (29 November 1969),
art VII.
63
International Convention on Civil Liability for Bunker Oil Pollution Damage (23 March 2001),
art 7.
64
(3 May 1996, 30 April 2010), art 12.
65
Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their
Luggage by Sea (1 November 2002), art 4bis.
66
Nairobi International Convention on the Removal of Wrecks (18 May 2007), art 12. As stated in
its preamble, this instrument is based on navigation safety considerations in addition to environ-
mental concerns.
based on references to the 1976 Convention.67 In each case the compulsory

insurance provisions of these conventions are largely identical. The Insurance
Directive is explicitly without prejudice to these five international conventions.68
In addition to these international examples certain states have introduced domes-
tic requirements for pollution-related insurance, notably the United States’ certifi-
cate of financial responsibility requirement. This pre-dates the Oil Pollution Act
1990 with which it is now commonly associated, and requires the person responsi-
ble for a vessel operating in the United States’ maritime zones to carry evidence of
insurance or similar arrangements up to the vessel’s maximum potential limit of
liability.69 In 1998 the United Kingdom amended its Merchant Shipping Act 1995
to enable regulations to be made imposing a compulsory insurance requirement
upon vessels in United Kingdom waters,70 but to date has only used this power in
relation to certain fishing activities.71 Since 2000 Australia has also required vessels
visiting its ports to hold insurance up to the limits of the 1996 Protocol to the 1976
Convention, but only for pollution damage, and only for the limited class of cases
where the vessel’s insurance cover relevant to the Oil Pollution Convention or
Bunkers Convention is not applicable.72
5.1.3.2 Background to the 1976 Convention
The concept of limiting the liability of shipowners in recognition of the inherent

risks of their trade, and the potential for their liability to greatly exceed their assets,
dates back centuries. The 1976 Convention is only the most recent in a line of
similar agreements.73 It represents an attempt to balance the competing policy
interests of claimants, who need adequate compensation for their losses, and
shipowners, who wish to reduce their exposure (and insurance premiums) through
67
Bunkers Convention, arts 6 and 7; Wreck Removal Convention, arts 10 and 12.
68
Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for maritime claims, art 2
(3) and annex.
69
The requirement was introduced by the Water Pollution Prevention and Control Act 1972,
s 311(p); see Fitch, “Unilateral Action Versus Universal Evolution of Safety and Environmental
Protection Standards in Maritime Shipping of Hazardous Cargoes” (1979), 151–152; see now
33 USC 2716; Schoenbaum, Admiralty and Maritime Law (vol 2, 2011) 302.
70
Merchant Shipping Act 1995, s 192A; see Soyer, “1996 Protocol to the 1976 Limitation
Convention: A More Satisfactory Global Limitation Regime for the Next Millennium?” (2000),
170.
71
The Merchant Shipping (Compulsory Insurance: Ships Receiving Trans-shipped Fish)
Regulations 1998. This includes insurance for salvage, and the repatriation of seafarers: cl 5.
72
Protection of the Sea (Civil Liability) Act 1981, Part IIIA; Protection of the Sea (Civil Liability)
Regulations 1983, cl 12. For similar New Zealand requirements see Maritime Transport Act 1994,
s 363; Maritime Transport (Certificate of Insurance) Regulations 2005; Marine Protection Rules
Part 102 – Certificates of Insurance (30 December 2004).
73
See Griggs, Williams and Farr, Limitation of Liability for Maritime Claims (2005), ch 2; Brice,
“The Scope of the Limitation Action” (1986), 18–21.
a ceiling on liability.74 The Convention is relatively successful, with 53 parties

representing 54 % of the world’s tonnage, and has been in force since 1986. The
1996 Protocol only entered into force in 2004, and has 46 parties representing 46 %
of world tonnage.75 In the EU context 15 Member States have ratified both the 1976
Convention and the 1996 Protocol, while a further six have ratified the 1996
Protocol and decided to denounce the 1976 Convention.76 Of the remaining
(non-landlocked) Member States only Italy, Portugal and Slovenia have not yet
ratified either instrument.
In contrast to the more specialised conventions containing limitation of liability
regimes, such as the five conventions noted above, the 1976 Convention deals with
“global” limitation,77 and was designed to encompass a wide range of maritime
claims that might arise in the course of shipping operations. It allows shipowners and
salvors to limit their liability in respect of claims involving personal injury and death,
damage or loss to property and cargo, and infringements of other non-contractual
rights relating to the operation of the vessel.78 The Convention does not apply to
claims for salvage, oil pollution damage, and claims under employment contracts
relating to the vessel.79 The right to limit liability is lost only where the act or
omission concerned was deliberate, or subjectively reckless,80 and the burden of
proving this rests on the claimant,81 making it very tough for claimants to defeat the
limitation system.82 The insurers of liability arising from claims subject to limitation
under the Convention are also entitled to rely upon its benefits.83
The 1996 Protocol, which came into force in 2004, increased substantially the
limits of liability established in 1976 and also introduced the tacit acceptance
procedure for updating future limits.84 The increase had a particular impact upon
74
Griggs, Williams and Farr, Limitation of Liability for Maritime Claims (2005), 3.
75
International Maritime Organization, Summary of Status of Conventions (6 March 2013).
76
This decision, which is envisaged by art 9(2) of the 1996 Protocol may have the effect of
limiting the denouncing state’s shipowners’ ability to rely on the 1976 Convention limits when
before the courts of a party that has signed the 1976 Convention, but not the 1996 Protocol: see
also 1976 Convention, art 15(1). See Griggs, “Limitation of Liability for Maritime Claims: The
Search for International Uniformity” (1997), 374.
77
Steel, “Ships are Different: The Case for Limitation of Liability” (1995), 82.
78
1976 Convention, art 2.
79
80
81
Griggs, Williams and Farr, Limitation of Liability for Maritime Claims (2005), 39–40.
82
See The Leerort [2001] 2 Lloyd’s Rep 291 (CA).
83
1976 Convention, art 1(6).
84
See Soyer, “1996 Protocol to the 1976 Limitation Convention: A More Satisfactory Global
Limitation Regime for the Next Millennium?” (2000). The tacit acceptance procedure allows
international conventions to be updated without requiring all states parties to expressly agree to the
amendment in question. A state may reject the amendment, agree to it, or remain silent, and in the
latter two cases the amendment will enter into force for that state after a set period of time. This
works more quickly than the traditional process in which parties to the original treaty negotiate,
smaller vessels, as the minimum tonnage increased from 500 tons under the 1976
Convention to 2,000 tons meaning the owner of a 500 ton vessel is now liable to the
same extent as the owner of a 2,000 ton vessel.85 The tonnage measurement used is
that of gross tonnage under the International Convention on Tonnage Measurement
of Ships,86 and the units of account used are Special Drawing Rights (SDR) as
defined by the International Monetary Fund.87 The use of gross tonnage bases the
vessel’s liability on its overall size rather than its cargo-carrying/earning capacity
(which is what net tonnage represents).88 The value of one SDR on 3 April 2013
was €1.17.89 The limits for personal injury and loss of life (not involving a ship’s
passengers) are currently90:
– Up to 2,000 tons: 2 million SDR;
– For each ton from 2001 to 30,000 tons: 800 SDR per ton
– For each ton from 30,001 to 70,000 tons: 600 SDR per ton;
– For each ton over 70,000 tons: 400 SDR per ton.
The limits for other claims are lower91:
– Up to 2,000 tons: 1 million SDR;
– For each ton from 2001 to 30,000 tons: 400 SDR per ton;
– For each ton from 30,001 to 70,000 tons: 300 SDR per ton;
– For each ton over 70,000 tons: 200 SDR per ton.
These limits apply to the aggregate of all claims against the shipowner or salvor
arising on a distinct occasion.92 The combined potential exposure in a situation
involving both categories of claim is three million units (€3,510,000).
A different limit applies to personal injury and death claims by passengers on a
vessel, namely 175,000 SDR (€204,750) per passenger that the vessel is authorised
to carry.93 There is also a provision enabling states to determine their own
regulations in relation to such claims, provided the relevant limits are not lower
sign and ratify a protocol to the original instrument: see Aust, Modern Treaty Law and Practice
(2007), 266–270.
85
See Griggs, Williams and Farr, Limitation of Liability for Maritime Claims (2005), 43.
86
1976 Convention, art 6(5): International Convention on Tonnage Measurement of Ships
(23 June 1969).
87
88
Griggs, Williams and Farr, Limitation of Liability for Maritime Claims (2005), p 51.
89
International Monetary Fund, www.imf.org.
90
1976 Convention, art 6(1)(a).
91
1976 Convention, art 6(1)(b).
92
93
1976 Convention, art 7. This combination of provisions gives rise to a complicated relationship
with the Athens Convention, which also deals with liability towards passengers, and which has
now been adopted into European Union law: see Griggs, Williams and Farr, Limitation of Liability
for Maritime Claims (2005), 52–55, 89, and 109; Regulation No 392/2009 of 23 April 2009 on the
liability of carriers of passengers by sea in the event of accidents.
than those prescribed by the Convention.94 Other provisions deal with the estab-
lishment of a limitation fund from which competing claimants’ claims may be
settled, and which acts as a bar to further claims.95
As article 4 (reproduced above) shows, the Insurance Directive relies upon its
insurance requirement being enforced against all vessels visiting European ports
through the EU’s well-established port state control regime.96 However, paragraph
(2) of that article also states that, subject to international law, Member States may
enforce the obligation against ships operating in their territorial waters. This
highlights a lack of certainty as to whether port state jurisdiction should be relied
upon exclusively, or whether a more general coastal state jurisdiction may also be
of assistance.
5.2.1 Legislative Background to the Port State Approach
The Commission’s original proposal for the Insurance Directive was not based
solely on port state jurisdiction. Instead, it was to be applied to each foreign vessel
entering a Member State’s “exclusive economic area or equivalent area”, although
no clues were given as to how this would be enforced in practice.97 However, at the
same time the framers were aware of the difficulties involved in exercising coastal
state jurisdiction against foreign vessels, as they noted in the subsidiarity section of
the proposal98:
The objectives of the proposal cannot be satisfactorily achieved by action on the part of the
Member States for the following reasons:
Under maritime law a State may in principle only apply its own national legislation to
ships flying its flag and to ships entering its ports. [. . .]
Unlike the maritime claims insurance requirement, the later-discarded “aban-

donment of seafarers” insurance requirement was to be applicable as soon as a
foreign vessel “enters a port or an offshore terminal under its jurisdiction or drops
94
See 1976 Convention, art 15(3bis).
95
1976 Convention, arts 10–13.
96
See generally Chap. 3, Sect. 3.1.3.
97
the civil liability and financial guarantees of shipowners (23 November 2005), 13–15 (draft arts
5 and 8(2)).
98
anchor in an area under its jurisdiction”,99 with the operator of the vessel being
required to notify the authorities of the Member State in question in advance of
arrival.100
The European Economic and Social Committee was also aware of the
complexities of regulating foreign shipping, noting that under UNCLOS “coastal
states can go beyond the provisions of the Convention provisions [sic] only in
respect of third vessels calling at their ports”.101 Conversely, the European
Parliament’s Transport and Tourism Committee were of the view that requiring a
foreign vessel to notify its compliance with the compulsory insurance regime upon
entering the EEZ was “in line with [UNCLOS]”, as that Convention “makes it
possible to cover ships in transit not stopping in EU ports”.102 These divergent
opinions were resolved by the Council of the EU in favour of the port state
jurisdiction approach, linked with port state control (but with an option for Member
States to use coastal state jurisdiction), now found in the Insurance Directive.
5.2.2 Could the Directive Have Been Applied More Widely?
By requiring all vessels to carry indemnity insurance for general maritime claims
the Insurance Directive goes beyond the international norm, as this is not a feature
of the 1976 Convention or any other agreement. Even though such vessels may
already be covered to this extent by standard P&I policies as a matter of industry
practice,103 and carry insurance to far higher limits in case of pollution damage
under more specialised regimes, this does not alter the Insurance Directive’s legal
implications. Would it have been consistent with international law to have the
insurance requirement apply as soon as a foreign vessel entered a Member State’s
territorial sea or EEZ? The port state control regime could still have provided the
basis for inspections and enforcement in the normal run of events, but could
99
the civil liability and financial guarantees of shipowners (23 November 2005), 13 (draft art 6).
100
European Commission, Proposal for a Directive of the European Parliament and the Council
on the civil liability and financial guarantees of shipowners (23 November 2005), 15 (draft
art 8(3)).
101
Committee on the [3rd Maritime Safety Package] (2006), para 4.7.2.
102
European Parliament, Transport and Tourism Committee, Report on the proposal for a
directive of the European Parliament and of the Council on the civil liability and financial
guarantees of shipowners (6 March 2007), 19.
103
P&I policies offer cover in conjunction with any liability limits that exist, deeming that a
member will have exercised any available limitation of liability rights: see Hazelwood and
Semark, P&I Clubs: Law and Practice (2010), 241 and following; Gold, Gard Handbook on
P&I Insurance (2002), 506.
Member States have retained the power to, if necessary, inspect at sea and turn
away any uninsured vessels?
As article 4(2) demonstrates, the Insurance Directive sets out a preference for
applicability based on a vessel’s entry into port, while acknowledging that some
Member States may, perhaps for the sake of keeping powers in reserve, wish to use
their coastal state jurisdiction to enforce the measure against vessels in their
“territorial waters”. This term is unhelpfully imprecise given the definitions used
in UNCLOS (internal waters, territorial sea, EEZ and so on), but this expression
would most likely include both the internal waters and the territorial sea, given the
use of the term “territorial” and the terms of article 2 of UNCLOS when compared
with areas over which a state has only limited jurisdiction such as the EEZ.104
As discussed in Chap. 2, the territorial sea is under the coastal state’s sover-
eignty, but contains a major limitation on coastal state jurisdiction over foreign
vessels in the form of the right of innocent passage. While there may be some
vessels that would enter the territorial sea in a non-innocent manner, or in a manner
that ceases to be innocent during their passage, the nature of the relevant offences as
set out in article 19 of UNCLOS are generally of such severity that a lack of
indemnity insurance is unlikely to be the coastal state’s major preoccupation.
Perhaps more likely would be the application to vessels that have anchored within
the territorial sea in a manner that was inconsistent with innocent passage.105
Nonetheless, in the context of international shipping on a day-to-day basis such
situations will be rare, and could not be expected to significantly influence the
outcomes sought by the EU in producing the legislation. The manner in which
several of the Member States have implemented the 2009 Directive suggests that
there is little interest in extending the application of the measure into coastal
maritime zones: the laws of France, Gibraltar (a territory of the United Kingdom),
Ireland and Malta make the insurance requirement applicable only upon entry
into port.106
In situations where a vessel is exercising innocent passage, article 21 of
UNCLOS arguably prevents the application of the requirements found in the
Insurance Directive. Article 21(1) provides an exhaustive list of areas that may be
regulated by coastal states in this context, and compulsory indemnity insurance
does not fit comfortably within any of them. Even though it could be argued that it
has the potential to remove uninsurable (and thus unsafe) vessels from Member
States’ maritime zones it cannot convincingly be presented as a requirement for the
“safety of navigation”, given the narrow scope of that concept.107 Nor could it
104
This is also the interpretation adopted by Proelss, “The ‘Erika III’ Package: Progress or Breach
of International Law?” (2012), pt D(I).
105
106
Code des Transports, art L5231-1 (France); Gibraltar Merchant Shipping (Insurance for
Maritime Claims) Regulations 2012, cl 4(2); European Union (Insurance of Shipowners for
Maritime Claims) Regulations 2011 (Ireland), reg 4(3); Merchant Shipping (Insurance for Mari-
time Claims) Regulations 2011 (Malta), cl 4(2).
107
UNCLOS, art 21(1)(a); see discussion at Chap. 4, Sect. 4.2.2.
realistically be presented as a regulation for the protection of navigational aids and

facilities, despite the reference to claims in relation to damage to navigational aids
in the 1976 Convention.108
The only area that the Insurance Directive’s insurance requirement could argu-
ably fall under is the prevention, reduction and control of pollution.109 The protec-
tion of the environment through the elimination of substandard vessels was
certainly mentioned by the European institutions responsible for drafting the
Insurance Directive, but without elaborating on the connection between environ-
mental protection and the compulsory insurance element in particular.110 Arguably
anything that improves the quality of shipping helps to reduce pollution by remov-
ing the number of substandard vessels from service, and thus reducing the chance of
an oil spill or similar accident resulting from inadequate adherence to shipping
standards.111 However, the recitals to the Insurance Directive itself mention only
the elimination of substandard (and therefore presumably uninsurable) vessels,112
rather than any environmental purpose, with the 2005 ship-source pollution Direc-
tive cited instead as an existing measure addressing this issue.113
On balance it would be unrealistic to argue that the Insurance Directive has been
promulgated “in respect of . . . the preservation of the environment of the coastal
State and the prevention, reduction and control of pollution thereof” as required by
article 21. It introduces a compulsory form of insurance that is not directly linked
with damage to the environment, or arising from environmental risks in the same
manner as more specialised regimes such as the Bunkers Convention. If environ-
mental harm occurs, and the claims in relation to that harm are covered by the 1976
Convention (as implemented within a Member State’s domestic law),114 then the
Directive should ensure that the vessel in question was carrying insurance to cover
that harm. But compensation for the environmental harm will be competing with
other claims such as personal injury and there is nothing to promote environmental
interests above those of other claimants. The relationship between the environment
108
1976 Convention, art 2(1)(a).
109
UNCLOS, art 21(1)(f).
110
See for example European Commission, Proposal for a Directive of the European Parliament
and the Council on the civil liability and financial guarantees of shipowners (23 November 2005),
5; European Union, Committee of the Regions, Opinion of the Committee of the Regions on the 3rd
Maritime Safety Package (2006), paras 7.2 and 7.8.
111
Stephenson, “Vessel-Source Pollution under the Law of the Sea Convention: An Analysis of
the Enforcement Standards” (1992), 134; Vukas, The Law of the Sea: Selected Writings (2004), 30.
112
recital 4.
113
recital 2.
114
Pollution-related claims may arise under article 2(1)(a) of the 1976 Convention provided they
occur “in direct connection with the operation of the ship”, while claims arising from pollution
from cargo or bunkers will fall under article 2(1)(d) provided they relate to clean-up or pollution
prevention costs see: The Aegean Sea [1998] 2 Lloyd’s Rep 39 (QB), 52–53. See also Griggs,
Williams and Farr, Limitation of Liability for Maritime Claims (2005), 19 and 23.
5.3 Interaction with Pre-existing International Conventions 133
and the Insurance Directive should not be viewed as strong enough for a Member
State to confidently assert jurisdiction over vessels engaged in innocent passage in
order to enforce the insurance certificate requirement. Further, having reached this
conclusion in relation to the territorial sea, a similar finding can be made for the
EEZ in which coastal states also have jurisdiction over “the protection and preser-
vation of the marine environment”.115 The European Council’s port state jurisdic-
tion approach was the correct one.
5.3 Interaction with Pre-existing International

Conventions
The Insurance Directive is an example of a port state measure that has a direct
relationship with a successful international convention. Two other such examples
include the EU’s use of a Regulation to accelerate the phasing-out of single-hulled
tanker vessels in 2003, which ultimately compelled the rest of the international
community to meet the EU timetable through an amendment to MARPOL,116 and
the EU’s requirement on the permissible sulphur content in passenger ferry fuel
(1.5 %), which represents a stricter standard than the current 3.5 % limit under
MARPOL.117 These rules may be contrasted with initiatives such as the United
States’ original double-hull requirement for oil tankers under the Oil Pollution Act
1990, which led to international agreement on the matter and an update to
MARPOL where no such requirement existed previously,118 and situations where
general EU law has been used to supplement perceived inadequacies in interna-
tional maritime law, as in the reliance on waste laws following the Erika tanker
spill.119
Introducing a unilateral requirement, even on a regional basis as in the EU’s
examples, on top of a pre-existing international convention will inevitably give rise
to a number of legal and policy considerations.
115
UNCLOS, art 56(1)(b)(iii).
116
Regulation No 1726/2003 of 22 July 2003 amending Regulation (EC) No 417/2002 on the
accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers;
see Ringbom, The EU Maritime Safety Policy and International Law (2008), 346–352.
117
content of marine fuels, art 4a; MARPOL, Annex VI, reg 14.
118
See Johnson, Coastal State Regulation of International Shipping (2004), 54–56.
119
Commune de Mesquer v Total France SA and Total International Ltd [2008] ECJ Case C-188/
07, applying Directive 1975/442/EEC of 15 July 1975 on Waste.
5.3.1 Going Beyond a Convention—Legal Considerations
From the outset the drafters of the Insurance Directive believed their initiative was
necessary to deal with flaws in the existing international regime of shipowners’
liability in relation to maritime claims.120 While not all of their aims were able to be
recognised, following decisions by the Council of the EU not to stray too far from
the international status quo, the Insurance Directive does represent a significant step
beyond the 1976 Convention, even with its 1996 Protocol.
As a result, a party that wished to argue that the Insurance Directive was
inconsistent with international law might still raise the argument that the EU’s
actions amounted to unacceptable interference with an existing international con-
vention. For example, they could suggest that the matters of shipowners’ liability
and insurance are so closely intertwined that the two instruments are effectively
dealing with the same subject-matter, with the widely-accepted 1976 Convention
deliberately leaving out any compulsory insurance requirement. Putting to one side
the fact that the EU itself is not bound by the 1976 Convention, not having signed it
or otherwise assumed the Member States’ competence in this area,121 arguments of
this kind raise the general issue of whether a state can lawfully introduce its own
more stringent standards in an area that is already covered by an international
agreement to which the state is a party.122
The arguments against a port state’s right to do as it wishes when it is a signatory
to international agreements regulating the same subject-matter focus on the aims of
such agreements and of the IMO generally. Proponents of this view might suggest
that the purpose of agreeing to international standards is to achieve, by way of
compromise, a universal level of maritime regulation. Others have simply argued
that IMO conventions represent maximum standards and that port states cannot
expect foreign-flagged vessels to comply with anything more stringent.123 This will
benefit the international community by making it easier for shipowners to operate
their vessels in compliance with basic standards, and by ensuring that coastal and
port states can enforce such standards in a cooperative and consistent manner. If
everything goes according to plan, no vessel operator will be faced with any
unwelcome surprises.
However, this position is not supported by the provisions of the IMO’s more
recent agreements, which have included articles acknowledging the residual
120
on the civil liability and financial guarantees of shipowners (23 November 2005).
121
See International Fruit Company NV [1972] ECJ Case C-21-24/72.
122
See Ringbom The EU Maritime Safety Policy and International Law (2008), 219–223.
123
See for example Boisson, Safety at Sea: Policies, Regulations and International Law (1999),
170; Jenisch, “The European Union as an Actor in the Law of the Sea: The Emergence of
Regionalism in Maritime Safety, Transportation and Ports” (2005), 251 and 259; Lagoni, “Law
and Uses of the Sea in a Change” (2009), 264. There is also an element of this line of thinking in
the Sellers decision, discussed in Chap. 4, Sect. 4.3.
jurisdiction of states to implement more stringent measures than those agreed to if

they wish.124 States are understandably wary of entering into agreements that limit
their ability to exercise jurisdiction over vessels, hence anyone promoting an
argument to the effect that all international shipping conventions represent binding
maximum standards faces a significant burden of proof.125
A number of scholars, including this author, argue that in the absence of any
explicit limitation on port state jurisdiction within a convention126 there is nothing
to prevent a port state ratifying that agreement, and then developing a more
stringent local requirement.127 It is generally agreed that the terms of the
agreements reached through the IMO are strongly influenced by significant mari-
time states (i.e. states with major shipowning interests), and therefore represent an
acceptable minimum standard of protection when it comes to coastal states’ envi-
ronmental and safety interests.128 In this situation it is not surprising that a suitably-
positioned state might sign an agreement (adding its ratification to those necessary
to bring the measure into force), enforce this international standard within its
maritime zones, and then use its port state jurisdiction to introduce measures that
will pressure other states to adopt even stricter standards.129
An additional legal issue, specific to EU Member States, may also arise in this
situation. Article 351 TFEU deals with situations where a Member State has entered
into an international agreement before its accession to the EU that is inconsistent
with its obligations under EU law. It allows those earlier commitments to continue
while imposing an obligation on the state to remove the inconsistency.130 As far as
the 1976 Convention is concerned this position would only apply to Bulgaria,
Estonia, Latvia, Lithuania and Poland, whose shipowners might wish to argue
that they were not required to take out insurance on the basis that the Convention
does not make this compulsory.
However, such arguments could not succeed given that the Insurance Directive
does not challenge the 1976 Convention head-on, for example by raising the 1996
Protocol limits or lowering the threshold at which those limits may be broken as
124
See for example International Convention on the Control of Harmful Anti-fouling Systems on
Ships (5 October 2001), art 1(3); International Convention for the Control and Management of
Ships’ Ballast Water and Sediments (13 February 2004), art 2(3).
125
Ringbom, “Regional Rules on Ship Safety and Pollution Prevention – Some Public Interna-
tional Law Reflections” (1997), 291 and 293.
126
See for example MARPOL, Annex VI, reg 15(1).
127
Molenaar, “Residual Jurisdiction under IMO Regulatory Conventions” (1997); Johnson,
Coastal State Regulation of International Shipping (2004), 43–44; Ringbom, The EU Maritime
Safety Policy and International Law (2008), 222–223.
128
See Stephenson, “Vessel-Source Pollution under the Law of the Sea Convention: An Analysis
of the Prescriptive Standards” (1992), 133–134; Tan, “The Regulation of Vessel-Source Marine
Pollution: Reconciling the Maritime and Coastal State Interests” (1997), 360–361.
129
Bearing in mind the policy considerations discussed in Chap. 3, Sect. 3.3.1.
130
See Eeckhout, EU External Relations Law (2011), 429 and 432; Rosas, “The Status in EU Law
of International Agreements Concluded by EU Member States” (2011), 1315 and 1322–1323.
was originally proposed. Accordingly, even for those Member States that have
ratified the Convention, there can be no serious charge that domestic legislation
implementing the Insurance Directive results in the key aims of the 1976 Conven-
tion being usurped or circumvented. Shipowners will still have limited liability, and
there is no article within the Convention that would expressly limit a state’s ability
to introduce its own compulsory insurance requirement linked to its limitation
regime. For the same reasons any argument that the Insurance Directive was
inconsistent with the 1976 Convention as a matter of international law would be
bound to fail. However, this does not mean that the EU’s actions do not give rise to
questions of policy, and in particular whether it is appropriate for states (or regional
organisations) to effectively change international law on a unilateral basis when
there is already a relevant international regime in place.
5.3.2 The Directive’s Impact on International Policy
In the context of the Insurance Directive, some might argue that further global
reforms would have been more appropriate, given that the compulsory insurance
requirement is arguably something that should be included within the world’s
maritime liability regime.131 In the absence of such security the right to limit
liability for maritime claims is rather one-sided in favour of the defined class of
shipowners. On the other hand, the growth of specific insurance regimes for matters
such as oil and hazardous substances pollution as well as passenger shipping
suggests that the risks that most concern coastal states are already being addressed.
Still, if a vessel cannot find insurance at even this minimal level it is a strong
suggestion that it is not safe and should not be given access to EU ports.132
But the same could be said of ports everywhere, so why did one or more of the
EU’s Member States not try to promote an additional protocol to the 1976 Conven-
tion through the IMO? The Convention is relatively successful, widely ratified
among the Member States, and in time concerted action could have updated the
international requirements sufficiently to enable the law to catch up with industry
best-practice. The IMO was not especially opposed to the measure, in spite of its
unilateral implementation, and its support could have been sought in promoting
such a change.
131
See Soyer, “1996 Protocol to the 1976 Limitation Convention: A More Satisfactory Global
Limitation Regime for the Next Millennium?” (2000), 169.
132
Nonetheless, the problem may at times arise further up the chain, as a vessel’s insurers may
simply rely on its classification society to certify it as worthy of insuring, and if the classification
society is not enforcing the appropriate standards then the insurer may be lulled into a false sense
of security. The risk is even greater when the insurance market is depressed and insurers less
selective: SSY Consultancy and Research Ltd, The Cost to Users of Substandard Shipping
(January 2001), 5–6.
The answer is no doubt based on political expedience, notably the need to

respond to the Prestige disaster in such a way that damage arising from any further
accidents is mitigated to the greatest extent possible. The international route would
simply have been perceived as too slow, given that it took the 1996 Protocol 8 years
to come into force, whereas action at the European level enabled an entire package
of reforms to come into force at the Union’s own pace.
Turning to the policy behind the Insurance Directive itself, it is hard to disagree
with the proposition that vessels should be properly insured. As large moving
structures potentially filled with dangerous goods they can do a lot of damage
when things go wrong. Take the example of a shipowner who chooses not to take
out indemnity insurance on an ageing, poorly-maintained vessel, perhaps having
been refused cover by its previous P&I club, and instead seeks to minimise potential
liability using a one-ship company structure and an offshore trust. If this vessel ends
up causing serious damage of some kind, then any party seeking compensation will
most likely have to look elsewhere for compensation, beyond whatever amount can
be raised from the sale of the near-worthless vessel. This situation is highly
unpalatable. An appropriate level of indemnity insurance, whether through P&I
club cover, an adequate self-insurance policy, or some other means is to be
encouraged as a way of spreading risk through the industry. After all, given that
the limits in the 1976 Convention and the availability of insurance have been
described by proponents of limited liability as “interdependent”,133 why not for-
malise this relationship and demand something that any responsible shipowner
already provides?
However, it is possible to take issue with the question of what should constitute
“properly” insured. By tying the Directive to the 1996 Protocol the EU has done
two significant things that were barely discussed during the legislative process. First
it has tied itself to the concept of limited liability for shipowners. Second it has
agreed that the 1996 Protocol limits are suitable as a level of insurance.
The decision to follow a policy of limited liability for shipowners is not
surprising. It is a long-established concept, and the relative success of the 1976
Convention shows that it appeals to a significant proportion of the international
community. However, there are arguments in favour of removing this limitation of
liability in order to ensure that victims recover an adequate amount of compensa-
tion. These include the suggestion that the original economic basis for the regime
no longer reflects the reality of contemporary shipping, and that the regime works in
a very unsystematic way (i.e. based primarily on tonnage alone).134
The arguments in favour of such regimes are usually based on the need for
insurance companies to work with an agreed limit (ideally an internationally-
accepted standard) when calculating premiums, particularly in the case of P&I
133
Steel, “Ships are Different: The Case for Limitation of Liability” (1995), 79.
134
See for example Mustill, “Ships are Different – Or Are They?” (1993); Gauci, “Limitation of
Liability in Maritime Law: An Anachronism?” (1995); Haddon-Cave, “Limitation Against Pas-
senger Claims: Medieval, Unbreakable and Unconscionable” (2001).
clubs which rely on members’ funds to function.135 However, authors such as

Basedow have pointed out that it is not convincing to base liability regimes on
the interests of the insurance market alone, shifting what would otherwise be the
liability of shipowners (and in turn their insurers) to innocent third parties. Unlim-
ited liability is adequately covered by insurance in other markets, and there is no
convincing evidence to suggest that there would be a radical change if limited
liability were abolished in the maritime context.136 The EU did not take the
opportunity to review this position, although this is not surprising given that it
continues to rely on the principle in other transport-related areas such as carrier
liability.137
The 1976 Convention, even with its 1996 Protocol in force, was initially
criticised by the Commission for having unrealistically low limits of liability for
the types of claims involved,138 although at one point the European Parliament’s
Committee on Transport and Tourism suggested that the 1996 levels allowed
victims to be properly compensated in most cases.139 The proposed doubling of
the 1996 Protocol limits would have been politically challenging,140 as it would
have been a clear break with the core terms of the international regime. For
example, the European Economic and Social Committee noted that P&I clubs
had indicated that they were not prepared to provide certificates for amounts
exceeding the 1996 levels.141 The Council of the EU decided to avoid difficulties
of this nature, and kept the Directive to the level of the 1996 Protocol so as not to
create “specific Community rules in parallel to international obligations regarding
135
See Seward, “The Insurance Viewpoint” (1986); Steel, “Ships are Different: The Case for
Limitation of Liability” (1995), 82; Lahmer, “Limitation of Liability and Denial of Limitation in
Maritime Conventions: Past, Present and Future of Limitation of Liability” (2009), 99–104.
136
Basedow, Der Transportvertrag (1987); for a discussion in English with reference to these
arguments and others see Damar, Wilful Misconduct in International Transport Law (2011),
16–20; see from an economic perspective Billah, “Economic Analysis of Limitation of
Shipowners’ Liability” (2006–2007), 310–312.
137
For example the EU is a party to the Convention for the Unification of Certain Rules for
International Carriage by Air (28 May 1999).
138
on the civil liability and financial guarantees of shipowners (23 November 2005), 3; but see Soyer,
“1996 Protocol to the 1976 Limitation Convention: A More Satisfactory Global Limitation
Regime for the Next Millennium?” (2000), 158–162 and 167.
139
140
on the civil liability and financial guarantees of shipowners (23 November 2005), 13 (draft art 5).
141
Committee on the [3rd Maritime Safety Package] (2006), para 4.7.2.
the same matter” which would “result in a contradictory situation and be

counterproductive”.142
These policy decisions must be viewed not only from a European but also from
an international perspective. By introducing the Insurance Directive the EU is
effectively saying that insured vessels are a good thing, limited liability for
shipowners is a good thing, and the 1996 Protocol is an acceptable point at which
to place that insurance and liability cap. But it is not only saying that this is the
policy that should be followed by EU vessels: all vessels visiting European ports
must comply.
While it is relatively unobjectionable to force the hands of states that have shown
no interest in whether or not ships operating under their flag carry insurance, the
policy of limited liability and the adoption of the 1996 Protocol limits are matters to
which a state might legitimately object. A third-party state that preferred a policy of
higher (or unlimited) liability for shipowners would not be unduly affected by the
Insurance Directive at an individual level, as nothing will compel that state’s courts
to adhere to the 1996 Protocol limits in the case of a dispute within the state’s
jurisdiction, even if its vessels are required to carry that level of insurance when
trading in Europe. However, a state promoting unlimited liability would now have
to compel all 27 Member States to abandon the policy if it sought change at the
international level. The task of a state seeking to increase the limits beyond the 1996
level would be more straightforward, as the 1996 Protocol introduced a tacit
acceptance procedure for such updates, but such changes can only be made due
to a “significant change in [the amounts’] real value”.143
In addition to these considerations, the Insurance Directive provides a reason for
any non-EU states that have ratified the 1976 Convention but not the 1996 Protocol
(of which there are about 25) to update their domestic law to match these higher
limits, especially if a significant number of their vessels trade with Europe.144 Apart
from any general benefits extended by greater legal harmonisation, such states may
as well extend the higher limits to potential claimants before their courts, given that
their vessels will be required to carry insurance at this level regardless of domestic
policy.
142
Council of the European Union, Statement of the Council’s Reasons: Common Position
adopted by the Council with a view to the adoption of a Directive of the European Parliament
and of the Council on the insurance of shipowners for maritime claims (24 November 2008), p 3.
143
1976 Convention, art 21; see above note 84.
144
pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common
position of the Council on the adoption of a Directive on the civil liability and financial guarantees
of shipowners (9 December 2008), 4.
5.3.3 Inconsistencies with the 1976 Convention
In addition to the questions of international law and policy discussed above, the
Insurance Directive also provides an example of the potential pitfalls of legislating
in an area already covered not only by existing international rules, but also a
significant body of industry practice. In relying on the 1976 Convention to deter-
mine the amount of insurance required and the risks covered, the Insurance Direc-
tive is likely to import any existing problems and ambiguities within the agreement
into European law. Even with the need to implement the Directive within each
Member State’s domestic regime, the interaction between these two instruments
gives rise to some avoidable inconsistencies. Four specific interface issues are
discussed below.
5.3.3.1 Vessels Affected
The Insurance Directive applies only to vessels of 300 gross tonnage or more,145
reflecting the 1976 Convention which allows a state party to form its own
regulations in respect of ships of less than 300 gross tonnage.146 There is no
definition of the term “ship” as used in the Directive, but the reference to “seago-
ing” ships within the definition of “shipowner” means that non-seagoing ships are
not covered (as their owners will be under no obligation to take out the indemnity
insurance).147 This accords with the option given to states parties to the 1976
Convention to exclude vessels plying inland waterways from its scope.148 Accord-
ingly, while a Member State may decide to extend the 1976 Convention’s liability
regime to inland vessels and those under 300 gross tonnes, the Insurance Directive
does not apply to such vessels.
The absence of a definition of “ship” is significant for the owners of fishing
vessels and recreational craft in particular. While the 1976 Convention does not
differentiate between such craft and commercial vessels, therefore allowing the
defined class of shipowners to limit their liability regardless of vessel type, EU
shipping regulations often do make such a distinction either by including a
145
art 2(1).
146
1976 Convention, art 15(2)(a). See also art 6(5).
147
art 3(a).
148
1976 Convention, art 15(2)(b).
restricted definition of “ship”,149 and/or expressly excluding such vessels.150

A ship of only 300 gross tonnage is a comparatively small vessel by the
standards of contemporary merchant shipping, with an average handysize mer-
chant vessel likely to be over 10,000 gross tonnage, meaning that the Insurance
Directive is likely to apply to every seagoing merchant vessel visiting European
ports. However, this tonnage limit is also sufficient to encompass certain large
fishing vessels and recreational craft.
The principles underlying the 1976 Convention remain essentially valid regard-
less of the type of vessel in question. A fishing vessel or pleasure craft is just as
capable of causing damage to persons or property as a similarly-sized merchant
vessel, and their owners will benefit from limited liability accordingly. On this basis
it would appear sensible to have the Insurance Directive apply equally to such
vessels as to the merchant fleet, and this is the approach being followed by the
European Maritime Safety Agency.
However, some aspects of the Insurance Directive do not apply comfortably to
such vessels. First the “seagoing” criterion does not appear to be an especially well-
chosen one in this context, as opposed to an article that explicitly includes fishing
vessels and pleasure craft, for example. In the absence of a specific definition of
149
For example: “a ship falling within the scope of [SOLAS and MARPOL]”, Directive 2009/15/
EC of 23 April 2009 on common rules and standards for ship inspection and survey organisations
and for the relevant activities of maritime administrations, art 2(a); Regulation No 391/2009 of
23 April 2009 on common rules and standards for ship inspection and survey organisations, art 2
(a); “any seagoing vessel to which one or more of the Conventions apply, flying a flag other than
that of the flag State”, Directive 2009/16/EC of 23 April 2009 on port State control, art 2(5); “a
seagoing vessel of any type whatsoever operating in the marine environment and shall include
hydrofoil boats, air-cushion vehicles, submersibles and floating craft”, Directive 2000/59/EC of
27 November 2000 on port reception facilities for ship-generated waste and cargo residues, art 2
(a); “any seagoing vessel or craft”, Directive 2002/59/EC of 27 June 2002 establishing a Commu-
nity vessel traffic monitoring and information system and repealing Council Directive 93/75/EC,
art 3(f); “a seagoing vessel, irrespective of its flag, of any type whatsoever operating in the marine
environment and shall include hydrofoil boats, air-cushion vehicles, submersibles and floating
craft”, Directive 2005/35/EC of 7 September 2005 on ship-source pollution and on the introduc-
tion of penalties for infringements, art 2(4); “a ship or craft flying the flag of a Member State
falling within the scope of the relevant IMO Conventions, and for which a certificate is required”,
Directive 2009/21/EC of 23 April 2009 on compliance with flag State requirements, art 3(a).
150
For example: “Fishing vessels, . . . wooden ships of a primitive build, . . . and pleasure yachts
not engaged in trade shall be excluded from the scope of this Directive”, Directive 2009/16/EC of
23 April 2009 on port State control, art 3(4); see similarly Directive 2000/59/EC of 27 November
2000 on port reception facilities for ship-generated waste and cargo residues, art 3; Directive 2002/
59/EC of 27 June 2002 establishing a Community vessel traffic monitoring and information system
and repealing Council Directive 93/75/EC, art 2(2); Directive 2009/18/EC of 23 April 2009
establishing the fundamental principles governing the investigation of accidents in the maritime
transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the
European Parliament and of the Council, art 2(2).
“seagoing ship” as provided in an earlier Directive,151 some fishing/pleasure craft

operators might argue, borrowing from the wording of that earlier definition, that
they operate their vessels only in sheltered waters, close to shore and are therefore
not “seagoing” for the purposes of the insurance requirement. Additionally, in the
case of pleasure craft operators, they might argue that the Insurance Directive’s
mention of “economic operators” and the need to “reestablish competition between
operators” suggests they were not its intended targets.152
The most significant factor indicating that fishing and pleasure craft were not the
forefront of the legislators’ minds relates to the enforcement of the Insurance
Directive. The Directive requires each affected vessel to carry an insurance certifi-
cate, and to present this as part of compliance with the EU’s port state control
regime. However, fishing vessels and pleasure craft are expressly excluded from
these inspections,153 with fishing vessels having their own safety regime in
place.154 While the wording did not survive the drafting process, the original
preamble in the Commission’s proposal referred to improving the quality of the
“merchant navy”,155 and the rest of the discussion surrounding this initiative seems
to have proceeded on the presumption that this was the intended scope, rather than
the more specialised areas of fishing vessels and pleasure craft, which are generally
regulated separately from merchant shipping. These factors could be used to
support an argument that one or both types of vessel should be excluded from the
Insurance Directive’s proper scope of application; arguments which could have
been avoided with a more specific provision on application.
5.3.3.2 Policy Holders
The insurance required by the Insurance Directive is to be taken out by the

registered owner, or other person (such as a bareboat charterer) responsible for
the operation of the ship.156 This is similar to the 1976 Convention’s definition,
151
Such vessels have been defined as any “ship other than those which navigate exclusively in
inland waters or in waters within, or closely adjacent to, sheltered waters or areas where port
regulations apply”: Directive 2008/106/EC of 19 November 2008 on the minimum level of
training of seafarers, art 1(11).
152
See Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for maritime
claims, recitals 1 and 4.
153
art 5(1).
154
See Directive 1997/70/EC of 11 December 1997 setting up a harmonised safety regime for
fishing vessels of 24 m in length and over.
155
on the civil liability and financial guarantees of shipowners (23 November 2005), 10.
156
art 3(a).
whereby “shipowner shall mean the owner, charterer, manager and operator of a
seagoing ship”.157
From the outset the Commission’s proposal was to apply the planned legislation
to shipowners, “a category covering all the people responsible for operating a
ship”,158 and the following (rather convoluted) definition was drafted159:
“shipowner” means the owner of the ship or any other organisation or person, such as the
manager or the bareboat agent or charterer, on whom the shipowner has conferred respon-
sibility for operation of the ship and who, on assuming such responsibility, has agreed to
take over all the duties and responsibilities this involves.
The Committee of the Regions was interested in extending obligations beyond

the registered owner of a vessel to other parties involved in a maritime enterprise.
The Committee proposed an amendment to the draft Directive that would have
applied the legislation to “operators and users of ships”, including “time-, voyage-,
and consecutive voyage” charterers, and required all such persons to provide a
financial guarantee in addition to that of the vessel’s owner. This was put forward
on the basis that it would recognise the responsibility of these parties for pollution
caused by the vessels they use or operate, and reduce the attractiveness of chartering
cheaper, substandard vessels.160 These proposals were not carried forward into the
next stages of drafting, during which the Council of the EU devised the current
definition of shipowner.161
Under the 1976 Convention, a broad definition of “shipowner” is beneficial to all
those who fall within its scope, as the Convention does not impose any duties on
such persons, and will allow them to limit their liability in the event of maritime
claims being made against them. The inclusive definition allows the global limita-
tion regime to apply to multiple persons at the same time (for example a ship’s
owner as well as its manager).162 However, under the Insurance Directive, any
party falling within the definition will need to provide insurance cover, and those
not closely connected with the vessel’s operations will wish to avoid this burden.
Such parties will benefit from the Insurance Directive’s narrow definition of
“shipowner”, which will apply to only one person at a time based on their overall
responsibility for the operation of the ship.
157
1976 Convention, art 1(2).
158
on the civil liability and financial guarantees of shipowners (23 November 2005), 2.
159
on the civil liability and financial guarantees of shipowners (23 November 2005), 12 (draft art 2).
160
European Union, Committee of the Regions, Opinion of the Committee of the Regions on the
3rd Maritime Safety Package (2006), 50.
161
and of the Council on the insurance of shipowners for maritime claims (24 November 2008).
162
See 1976 Convention, art 9(1)(a) and (2).
As a result, situations may arise where several parties are defendants to a

maritime claim, such as a ship’s registered owner, bareboat charterer, and voyage
charterer, and while all may limit their liability under the 1976 Convention, only
one will be required to carry the insurance provided for in the Insurance Direc-
tive.163 Arguments between registered owners and those they claim are in fact
responsible for the operation of their vessel for the purposes of the Directive are
therefore possible. The only example given of a responsible party is the bareboat
charterer, who would usually take out P&I cover in the same manner as a ship-
owner.164 This leaves the question of voyage or time charterers, who may be held
responsible for the operation of the vessel, but hold only a more limited form of
indemnity insurance or charterer’s P&I cover.165 Any European court addressing
this issue will have to pay careful attention to industry practice in order to avoid
generating EU obligations that are needlessly out of sync with the marine insurance
markets.
Although it makes only one party responsible for taking out the insurance policy,
the Insurance Directive does not remove liability from any other party, a similar
practice to that followed in the Bunkers Convention, for example.166 A more
ambitious alternative would have been to follow the definition of the 1976 Conven-
tion and require all those who benefit from the ability to limit their liability to take
out insurance, helping to ensure that, once a fund is established and claims made,
each of the applicable defendants will be in a position to meet those claims. Unlike
the Committee of the Regions’ suggestion, this would have the advantage of tying
in with the existing international regime. However, a serious problem with either of
these more extensive approaches would be enforcement. It will be much simpler for
port officials to inspect a single insurance certificate rather than having to delve
through the network of contractual relationships involved in the venture in order to
ensure that every charterer and manager has insured themselves.
163
Another distinction between the 1976 Convention and the Insurance Directive is that the former
allows salvors to limit their liability, whereas the latter does not expressly place a compulsory
insurance requirement upon them. Arguably a salvor taking a vessel into port could be deemed
responsible for its operation in terms of the Directive, but it would be difficult to argue that it
should therefore be classed as the shipowner for insurance purposes if the registered owner or
charterer is still available. See 1976 Convention, art 1(1) and (3).
164
Gold, Gard Handbook on P&I Insurance (2002), 124.
165
See Hazelwood and Semark, P&I Clubs: Law and Practice (2010), 79–82; Gold, Gard
Handbook on P&I Insurance (2002), 124–125.
166
Bunkers Convention, arts 3, 6 and 7. The registered owner is responsible for the insurance,
while the definition of the liable shipowner is wider. See Røsæg, “Compulsory Maritime Insur-
ance” (2000), 193.
5.3.3.3 Risks Insured
Commenting on the absence of a compulsory insurance regime within the 1976

Convention Røsæg notes that167:
. . . the 1996 Protocol to the global limitation convention (LLMC) did not trigger much
debate on compulsory insurance. The revision of the LLMC did not go much beyond the
revision of the limitation amounts. The reason was, however, not that one did not feel a
need for compulsory insurance. The argument was rather that it would be difficult to require
compulsory insurance in a convention like the LLMC, where the basis of liability is not set
out. . . .
These concerns as to the basis of liability do not appear to have resurfaced during
the development of the Insurance Directive, which simply refers to the “maritime
claims” covered by the 1976 Convention in relation to the risks which must be
covered by the insurance policy.168 These claims are set out in article 2 of the
Convention and include personal injury and death, damage to property, claims
relating to delays in the carriage of passengers or cargo by sea, and other
non-contractual claims.169
The original proposal included only one form of risk not explicitly covered by
the Convention, namely claims arising from the requirement to repatriate aban-
doned seafarers.170 This was an area in which existing international regulatory
measures were perceived by the European Parliament’s committee to be performing
poorly,171 and the costs of accommodation and medical care were added to those of
repatriation in the Parliament’s revised draft.172 This led the Commission to also
include the payment of outstanding remuneration in order to fully describe the
167
Røsæg, “Compulsory Maritime Insurance” (2000), 180.
168
art 4(3).
169
170
on the civil liability and financial guarantees of shipowners (23 November 2005), 13 (draft arts
1 and 6).
171
guarantees of shipowners (6 March 2007), 19. Regulation 2.5 of the Maritime Labour Convention
(23 February 2006), soon to be in force, requires financial security to be provided by flag states to
ensure the repatriation of seafarers.
172
financial guarantees of shipowners (29 March 2007), 9 (draft art 8). See also Maritime Labour
Convention (23 February 2006), regs 2.5, 4.1 and 4.2.
relevant IMO resolution.173 This aspect of the draft Directive was rejected by the
Council of the EU on the same basis as the doubling of the 1996 Protocol liability
limits.174
As noted above the 1976 Convention does set out a list of claims in relation to
which a shipowner can rely on the limitation of liability regime, but it does not
provide a clear basis of liability. In other words, if a person claims for the costs of
removing of a ship that has sunk, the shipowner can limit its liability under article 2
(1)(d) of the 1976 Convention. However, P&I insurance works differently from
this, referring instead to the named risks covered.175
In limited situations these two approaches do not overlap. For example, if the
ship sank as a result of hitting a World War II mine, then a P&I insurer would
categorise this as a war risk – a risk that P&I policies do not ordinarily cover.176 The
outcome is that a shipowner is supposed to have insurance to cover the sinking
under the Insurance Directive, but is not going to be able to get this through their
normal P&I cover. Technically the shipowner would have to take out war risks
insurance as well, which is a specialised and costly branch of the market,177 in order
to have insured all the possible claims that could be made under the 1976
Convention.
The same problem occurred in relation to terrorism-related risks under the
Athens Convention, leading to a refusal by P&I clubs to provide such cover, with
some states deciding not to ratify the Convention as a result of insurance concerns.
This problem was partly solved by allowing states to ratify the agreement with a
reservation as to the maximum amount insurable for terrorism losses,178 and
specialised insurance has since become available to cover this risk.179 In the context
of the Insurance Directive a member of the Danish Maritime Authority pointed out
this dilemma during the instrument’s development, but no action was taken. The
most likely outcome is that the non-passenger market will not change, and the
majority of shipowners will remain (to a limited degree) in default of their
obligations under the Insurance Directive.
173
Council on the civil liability and financial guarantees of shipowners (24 October 2007), 3;
International Maritime Organization, Guidelines on Provision of Financial Security in case of
Abandoned Seafarers (17 December 2001). See also Maritime Labour Convention (23 February
2006), reg 2.2.
174
and of the Council on the insurance of shipowners for maritime claims (24 November 2008), 3.
175
See Hazelwood and Semark, P&I Clubs: Law and Practice (2010), ch 9; Gold, Gard Handbook
on P&I Insurance (2002), 114–117.
176
Hazelwood and Semark, P&I Clubs: Law and Practice (2010), 209; Gold, Gard Handbook on
P&I Insurance (2002), 81–83.
177
178
See Damar, “Compulsory Insurance in International Maritime Conventions” (2009), 162–163.
179
See Gard P&I, The Athens Convention/EU Passenger Liability Regulation (November 2012).
5.3.3.4 Direct Action
Had the liability insurance approach taken in each of the five international
conventions incorporating compulsory insurance been adopted, then the fact a
relevant event had occurred would have made the insurer directly liable to any
claimants.180 However, as the EU chose to require only a policy of indemnity
insurance, the Insurance Directive provides no such right of direct action.
This right has been described as “pivotal” in the compulsory insurance context
as it is often much more convenient for a claimant to seek redress from an insurance
company than from a shipowner who might have no liquid assets and be based in a
remote jurisdiction.181 In addition it has been argued that a right of direct action is
politically important given that “nowadays insurance proceeds are viewed as for the
benefit of the injured party rather than the protection of the assured”.182
However, it has also been noted that this kind of right forms a major point of
opposition to compulsory insurance regimes on the part of insurers,183 whose
support is often perceived as essential to successfully implementing any
adjustments to the world’s liability regimes.184 For example, the International
Group of P&I Clubs has argued in relation to criticisms of the Insurance Direc-
tive185 that the rights of direct action available in the other international agreements
already provide sufficient options for recovery.186 Furthermore, it has been argued
that it would be inappropriate for commercial claimants, for example in collision or
carriage of goods cases as opposed to “innocent victims of maritime disasters”, to
have a right of direct action.187
The EU has certainly avoided this criticism and perhaps a battle with insurers by
leaving the issue of direct action unaddressed, but when combined with the
enforcement problems identified below188 this omission leaves the Insurance
Directive rather toothless as a means of ensuring real compensation for claimants.
180
See for example: Oil Pollution Convention, art VII(8); HNS Convention, art 12(8); Bunkers
Convention, art 7(10); Wreck Removal Convention, art 12(10); Athens Convention, art 4bis(10).
181
Røsæg, “Compulsory Maritime Insurance” (2000), 189–190; see also Røsæg, “Multinational
Transport Company Groups Above and Beyond Nation States: How Does the Law Respond to
That?” (2009), 22–23.
182
Soyer, “Sundry Considerations on the Draft Protocol to the Athens Convention Relating to the
Carriage of Passengers and their Luggage by Sea 1974” (2002), 528.
183
Røsæg, “Compulsory Maritime Insurance” (2000), 189–190; see also Gold, Gard Handbook on
P&I Insurance (2002), 463.
184
185
Nicolas Tsavliris, “Salvage: the P&I clubs may not have it covered” (Lloyd’s List, 3 June 2009);
Haco van der Houven van Oordt, “Third EU safety package poses protection question” (Lloyd’s
List, 20 January 2010).
186
Griggs, “Developing a Comprehensive Third-Party Liability Convention” (2010), 348–349.
187
See Jonathan Hare “Existing conventions offer enough protection” (Lloyd’s List,
28 January 2010).
188
See below Sect. 5.4.2.1.
Instead of being provided with a remedy by the EU in this context, claimants may
have to rely on the domestic law applicable to their claim for compensation, hoping
this permits some form of claim against any relevant insurance payout received by
the shipowner.189
5.3.4 Summary
The restrained approach taken in relation to the Insurance Directive means that the
chance of any complaints from industry or the international community has been
skilfully minimised. The EU has managed to add what is in effect a second protocol
to the 1976 Convention requiring compulsory insurance, and apply it to all foreign
vessels entering European ports, with almost no argument to the contrary. Perhaps
in this case the shipping world should simply be thankful that the EU decided to
work in conjunction with an existing convention, rather than developing a
completely new set of rules as was initially proposed. On the other hand, this is
an uncomfortable approach from a non-European perspective. If the EU continues
to circumvent the IMO-led international position in this way, and is permitted to get
its way with minimal protest, there might be little pressure stopping future
developments that could chip away at the international body’s generally positive
influence in shipping regulation. Furthermore, as the four specific interface issues
discussed above demonstrate, it is difficult to take even this kind of approach
without giving rise to further complication and uncertainties of interpretation and
scope.
5.4 Requirements Affecting Vessel Administration
Chapter 4 discussed both regulations relating to vessel conditions (i.e. dealing with
the construction or design of the vessel itself and its equipment) and vessel
operations (i.e. how the vessel is operated at sea). It was concluded that the
regulation of vessel conditions was not open to strong legal challenge under
international law, as all relevant elements occur within port, and thus within the
state’s territorial jurisdiction. Regulation of vessel operations was shown to be more
complex, potentially involving the attempted regulation of extraterritorial conduct,
and having a less certain position under international law.
The Insurance Directive represents a third category of shipping regulation,
dealing with aspects of vessel administration.190 Requirements relating to vessel
administration will become applicable to a foreign vessel as the result of its entry
189
See for example New Zealand’s Law Reform Act 1936, s 9.
190
5.4 Requirements Affecting Vessel Administration 149
into port, but will not dictate the standard of vessel’s physical components or the
manner in which it must be operated. Instead the requirements will relate to the
network of contracts and other legal arrangements (such as ownership structure)
that underpins the vessel’s day-to-day operations.191 The brief and transitory
presence of the owner’s vessel in port may trigger an administrative obligation
that goes to the heart of the owner’s business, and must in practice be complied with
not in the port state, but in his home jurisdiction.
The exercise of port state jurisdiction over aspects of visiting foreign-flagged
vessels’ administration must be distinguished from the regulation of shipowners
that are based in the port state. In the latter scenario the port state may decide that it
is more effective to regulate the owner’s business operations within the jurisdiction
directly, rather than applying its laws to the owner’s foreign-flagged vessels. For
example, there may be a way of amending relevant definitions to extend shipping
regulations to a vessel’s effective (as opposed to formal) ownership, enabling a
state to establish the “presence” of a company within its jurisdiction.192 Provided
the right persons are within the state’s territorial jurisdiction, the location of the
vessel can be overlooked entirely; the “port” element of the state’s jurisdiction will
be irrelevant.193
Examples of this approach at the international level can be seen in recent moves
to include vessel operators, who may not be based in the flag state, in aspects of
maritime conventions. The most notable example is the International Safety Man-
agement Code, the core provisions of which have been incorporated into SOLAS.
This applies specifically to companies as well as ships.194 “Company” is defined as
including the ship’s owner, manager, bareboat charterer or any other party that has
assumed responsibility for the vessel’s operation, and the compliance of relevant
persons is supervised by flag states and other states parties to SOLAS.195 This
approach has also been adopted in relation to maritime security requirements,196
and the Maritime Labour Convention represents a further step towards the
191
For discussion of this category in relation to employment matters see Chap. 6, Sect. 6.4.2.
192
Jennings, “Extraterritorial Jurisdiction and the United States Antitrust Laws” (1957), 154;
Røsæg, “Multinational Transport Company Groups Above and Beyond Nation States: How
Does the Law Respond to That?” (2009), 18–19.
193
Conversely, the potential to arrest a vessel in port is certainly a powerful means of influencing a
vessel owner regardless of how complex and diffuse their corporate structure might be: Røsæg,
“Multinational Transport Company Groups Above and Beyond Nation States: How Does the Law
Respond to That?” (2009), 16–17.
194
SOLAS, ch IX, reg 2(1). Valenzuela suggested that this shift from flag state- to ownership-
focused compliance “may well in time prove to be the most revolutionary change adopted by IMO
during its 40 years of existence”: Valenzuela, “Enforcing Rules against Vessel-Source Degrada-
tion of the Marine Environment: Coastal, Flag and Port State Jurisdiction” (1999), 502.
195
SOLAS, ch IX, regs 1(2) and 6(1).
196
See SOLAS, ch XI-2.
regulation of companies established in a state party’s territory (in that case seafarer
recruitment and placement services).197
5.4.1 Regulating Vessel Administration
As with other aspects of port state jurisdiction, UNCLOS provides very little
guidance in this area, although its provisions suggest that matters of vessel admin-
istration are among those that remain primarily the responsibility of the flag
state198:
1. Every State shall effectively exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag.
2. In particular every State shall:
[. . .]
(b) assume jurisdiction under its internal law over each ship flying its flag and its master,
officers and crew in respect of administrative, technical and social matters concerning the
ship. [. . .]
However, like other flag state obligations under UNCLOS, the Convention does
not exclude the possibility of concurrent jurisdiction with coastal and port states in
respect of administrative matters.199
Regulations that target vessel administration involve a combination of legal
considerations arising from both regulations targeting vessel conditions and vessel
operations. Compliance with such requirements will generally be evidenced by a
certificate or other readily-available statement (provided online for example) in the
manner of a rule on vessel conditions. This can be assessed within the port state’s
territorial jurisdiction: the evidence will either be present in port or it will not
be. However, the arrangements to which the evidence refers will have been made
offshore and, unlike the addition of new equipment to the vessel for example, will
have remained offshore in substance rather than “following” the vessel into port.
This imports an extraterritorial aspect to this kind of regulation, much like those
affecting vessel operations. The key distinction is in the matter of enforcement, as
discussed below.
The Insurance Directive provides an example of the issues involved in this
approach. According to its provisions, all a vessel must have is an insurance
197
Maritime Labour Convention (23 February 2006), art V(5) and reg 5.3.
198
UNCLOS, art 94(1) and (2) (emphasis added). There is no suggestion in UNCLOS that
administrative matters form a separate legal category. The term “administrative” is used only in
its broad, descriptive sense.
199
Nandan and Rosenne, United Nations Convention on the Law of the Sea 1982: A Commentary
(vol III, 1995), 152. One exception is arguably the granting of nationality to a vessel by its flag
state. This appears to be an aspect of flag state jurisdiction that a port or coastal state cannot
supersede, no matter how closely associated the vessel is with their jurisdiction: see Chap. 6
Sect. 6.7.1.
certificate on board when it arrives in port, which must evidence arrangements the
shipowner has made in advance. There is no question of these rules transgressing
against any general limitations on a state’s prescriptive jurisdiction such as the
doctrine of good faith or abuse of rights, and its provisions involve no discrimina-
tion against particular flags. To the extent its provisions require any extraterritorial
conduct, the EU can argue that it represents a valid condition of port entry
(as discussed in Chap. 4).
However, it is also possible to envisage arguments to the effect that third party
liability insurance arrangements are a matter that must be left to the shipowner to
arrange, subject only to compliance with any flag state regulations. The shipowner
could argue that just because her vessel is temporarily in port, this does not mean
that the port state can claim sufficient connection to her business dealings more
generally to regulate its insurance arrangements. For example, any contract of
insurance will not even be partly performed in the port state’s jurisdiction, as
such contracts are best seen as being performed at the place where the insurer is
based,200 not wherever the insured person or thing travels. Furthermore, even if the
insurance requirement has been implemented in the interests of EU-based parties
who may suffer damage as a result of the vessel’s activities, the Insurance Directive
makes no limitation as to its territorial application and is therefore too widely
framed to be consistent with international law.
Such arguments will not succeed in the case of the Insurance Directive. Where
insurance is concerned they may have carried considerably more weight in previous
decades than they would now. While general third party liability insurance has
traditionally been a matter left up to the shipowner or charterer to arrange with a
P&I club, the existence of the five internationally-agreed compulsory insurance
regimes noted above suggests that the shipping industry is beginning to accept an
increasing amount of regulation and port state oversight in the insurance context.201
Added to this, the lack of international protest or opposition from industry in
relation to the Insurance Directive suggests that the measure was sufficiently
low-impact to be acceptable to the vast majority of the shipping sector. From this
author’s perspective, the requirements of the Insurance Directive represent a legiti-
mate exercise of port state jurisdiction, consistent with international law.
A second example of a provision dealing with vessel administration is the Cruise
Vessel Security and Safety Act’s provision establishing an online database of cruise
vessel crime.202 The database is maintained by the United States Coast Guard,
based on data gathered by way of the compulsory reporting scheme established
200
Collins (ed), Dicey, Morris and Collins on the Conflict of Laws (2012), 2002. The characteristic
performance is the provision of cover (i.e. through the payment of money) in response to a claim.
201
Each of these conventions involves an element of port state control: Athens Convention, art
4bis(13); Wreck Removal Convention, art 12(12); Bunkers Convention, art 7(12); HNS Conven-
tion, art 12(11); Oil Pollution Convention, art VII(11).
202
under the Act.203 Data is presented by cruise line, type of crime, and whether the
alleged crime was committed by a crewmember or by a passenger.204 For example,
in the quarter from 1 April to 30 June 2011, three sexual assaults were reported by
Carnival Cruise Lines, two by Royal Caribbean, and one assault with serious bodily
injury by Norwegian Cruise Line.205 Each “cruise line taking on or discharging
passengers in the United States” must link to this database on its website,206 and
although the term “cruise line” is not defined, the wording of the Act does not
prevent this term applying to a foreign company.207 Accordingly, unlike the
majority of shipping regulations, the information required is not specific to the
visiting ship in particular. The aspect of vessel administration affected is the kind of
information its operator has to make public.
Having a database of crimes connected with its voyages made public has the
potential to seriously affect a cruise line’s public image, and its business generally.
However, for a prospective passenger, this information might be welcome as an
indication of the level of risk involved in a cruise holiday, and similarly a govern-
ment authority or other agency could find the statistics useful in preparing public
policy and legislation. In regulatory terms this disclosure requirement represents a
different approach from the other examples discussed in this work. Requirements
that organisations simply make public certain information, without any other
attempt to control behaviour, is generally seen as a less interventionist form of
regulation.208 As with the insurance requirement discussed above, the question
raised from an international law perspective is whether the act of having a vessel
visit the United States to do business there, in the form of a passenger embarkation
or disembarkation, is sufficient to justify such interference in a foreign company’s
affairs.
The Act’s information requirement is made applicable to the cruise operator by
way of port state jurisdiction, and like the Insurance Directive can be interpreted as
a condition of port entry. Given the scope of the Act’s reporting obligation, the
crimes involved may have occurred anywhere in the world, although in all cases
there will be some connection with the United States or its nationals.209 Again, as
with the Insurance Directive, the Act has been framed with a keen eye on what the
industry will tolerate, and has attracted no international protest. The requirement is
somewhat removed from the ordinary run of shipping regulations, and the cruise
203
46 USC 3507(g); see United States Coast Guard, http://www.uscg.mil/hq/cg2/cgis/CruiseLine.
asp.
204
46 USC 3507(g)(4)(A).
205
United States Coast Guard, Cruise Vessel Security and Safety Act (CVSSA) of 2010 Statistical
Compilation (1 April 2011 to 30 June 2011).
206
46 USC 3507(g)(4)(B). See for example Carnival Cruise Lines, http://www.carnival.com/cms/
fun/cruise_control/security_safety_act.aspx.
207
Such companies may of course avoid the requirement by not visiting any United States ports.
208
Ogus, Regulation: Legal Form and Economic Theory (1994), 150–151; Baldwin and Cave,
Understanding Regulation: Theory, Strategy, and Practice (1999), 49–50.
209
46 USC 3507(g)(3).
lines know which jurisdiction is generating the bulk of their profits. Again, in this
author’s view, it represents a valid exercise of port state jurisdiction.
This is not to suggest that all such information requirements would be
acquiesced to in the same manner. If a full disclosure of all financial interests in a
vessel had to be disclosed to enter a particular state’s ports, arguments to the effect
that such requirements were beyond that state’s jurisdictional competence might
well arise.
In this author’s view there is a valid legal distinction to be drawn between
regulating the conditions or operations of a visiting foreign vessel present in the
port state’s jurisdiction, and attempts to regulate the administrative arrangements of
the vessel’s owner. This legal distinction is one of degree, relevant primarily in
relation to the balancing of jurisdictional factors. When assessing whether particu-
lar laws give rise to an excessive claim to jurisdiction, for example as part of the
substantial connection approach discussed in Chap. 6,210 the fact they involve the
regulation of business arrangements beyond the visiting vessel, and beyond port
state’s jurisdiction, will count against any regulations targeting vessel administra-
tion will. However, there is not yet a great deal of state practice through which to
explore these considerations with more precision.
This conclusion is not intended to suggest that rules targeting vessel administra-
tion will invariably be more controversial than those targeting vessel conditions or
vessel operations. As with all examples discussed in this book their reception will
depend on factors such as the costs involved to industry and the extent to which any
states’ navigational or commercial interests are affected. A double-hull require-
ment, in relation to which a port state is on solid jurisdictional ground, may well
face more opposition than a jurisdictionally questionable requirement that a foreign
shipowning company can comply with quickly and without significant expense.
The examples of both the Insurance Directive and the Cruise Vessel Security and
Safety Act illustrate this point. Where there is a sharper divide between vessel
administration requirements and others is in relation to enforcement.
5.4.2 Enforcement Considerations
As noted above, vessel administration requirements are commonly paired with a

requirement to produce a certificate showing compliance, as in the case of the
Insurance Directive.211 This is not an intrusive rule, involving only a piece of paper
that any responsible shipowner will already be in possession of. The absence of a
proper certificate can be relied upon as an in-port breach of a vessel condition
requirement, avoiding any jurisdictional complications. However, as the Insurance
210
211
art 6.
Directive illustrates, the issue of enforcement is the most significant difference

between vessel administration requirements, and requirements more directly
connected with the vessel condition and its operations.
5.4.2.1 Adequacy of the Insurance
As discussed above, it was not until the Council of the EU came to analyse the draft
Directive that the compulsory insurance scheme was allied with the port state
control regime, which was also being strengthened as part of the Erika III package
of reforms. Having a port state control officer check one additional certificate does
not add a substantial workload when one considers the 43 other items mentioned in
the “list of certificates and documents” annex of the port state control Directive,
each of which may need be reviewed during an initial inspection.212 However, this
ease of inspection masks the inability of port inspectors to assess the adequacy of
any insurance supposedly represented by the certificate, and the appropriateness of
the steps available to port officials if a vessel is found to be in breach of the
Insurance Directive.
The certificate that must be provided under the Insurance Directive needs to
include the basic details of the ship, shipowner, and insurance provider (where
relevant), as well as the type and duration of the policy, and be in one of three major
European languages.213 However, there is no mechanism provided that would stop
an unscrupulous shipowner from presenting a “self insurance” certificate that is not
worth the paper it is printed on.214
The potential for this to happen was apparently foreseen by the drafters of the
Insurance Directive. In its original proposal the Commission had envisaged that
Member States’ national authorities would have the responsibility of verifying that
each ship in its registry had adequate insurance, and issue a certificate of its own to
this effect.215 In response to this the European Economic and Social Committee
recommended that a certificate of entry into a P&I club would be more appropriate
evidence of coverage than a certificate from a Member State authority.216 The
European Parliament’s Transport and Tourism Committee was also alive to the
issue, and made several recommendations aimed at strengthening the compulsory
insurance regime. The first was that “When issuing certificates, competent
212
Directive 2009/16/EC of 23 April 2009 on port State control, art 13(1)(a) and Annex IV.
213
art 6.
214
Referring to this possibility see Steel, “Ships are Different: The Case for Limitation of
Liability” (1995), 81.
215
on the civil liability and financial guarantees of shipowners (23 November 2005), 13–15 (draft arts
5, 7 and 8).
216
Committee on the [3rd Maritime Safety Package] (2006), para 4.7.4.3.
[Member State] authorities shall also consider whether a guarantor has a business
establishment in the EU”.217 The reason given for this change was that companies
with an agent or branch in the EU would be easier targets for litigation than
companies established in countries that “did not meet minimum requirements of
the rule of law”.218 The second recommendation was the establishment of a
“Community Office” that would keep a register of certificates, as well as monitor-
ing their validity and checking the existence of financial guarantees provided by
persons in countries outside the EU. Thirdly a “solidarity fund” was proposed,
which would be funded by the shipping industry, to provide compensation to
victims of accidents caused by uninsured vessels.219
The Commission was not prepared to accept the concept of a solidarity fund, and
was doubtful as to the efficiency of a new office solely for the administration of the
insurance regime. However, it was prepared to look further into the possibility of
the European Maritime Safety Agency being given some responsibilities in this
area.220 The Council poured more cold water on the proposals in its response to the
draft legislation, indicating that a system of certification organised through Member
State authorities would create an unnecessary administrative burden.221 Instead the
Council put forward a certificate inspection requirement linked to port state control,
with no further oversight as to the adequacy of the insurer issuing that certificate.222
As a result of this cost-cutting, the Insurance Directive lacks the protection found
in the five compulsory insurance conventions. These all involve the flag state (or a
delegated authority223) issuing the certificate attesting to the existence and ade-
quacy of the insurance arrangements. Furthermore, the arrangements must be in the
217
218
219
220
Council on the civil liability and financial guarantees of shipowners (24 October 2007), 4.
221
222
223
See International Maritime Organization, Guidelines for the Authorization of Organizations
Acting on Behalf of the Administration (4 November 1993). In practice classification societies
often fulfil this role: see for example UK P&I Club, Flag State Summary – Hong Kong (31 August
2010), available at www.ukpandi.com, noting that Hong Kong had delegated the issuing of
certificates under the Bunkers Convention to the China Classification Society and the Korean
Registry of Shipping.
form of “insurance or other financial security, such as the guarantee of a bank or

similar financial institution”,224 which would arguably not include self-insurance
given the reference in each case to a third party’s agreement to cover the risk.
The combination of shipowner and flag state responsibility is not perfect,225
especially when the vessels of non-parties are concerned. Here the conventions
either allow parties to issue non-parties’ vessels with certificates in the first
instance, or otherwise “ensure . . . that insurance or other security . . . is in force”,
regardless of a vessel’s flag state, by way of port state control.226 The port state
control provision does not require that the vessel will have a certificate issued by a
state party’s authority, so there is still scope for a vessel to present an effectively
worthless certificate, but this is one of the practical problems with enforcing matters
of vessel administration. The system at least provides a level of oversight as far as
the parties to each convention are concerned, and the numbers in relation to the
Bunkers Convention (68 parties, 90 % of world tonnage) and the Oil Pollution
Convention (130 parties, 97 % of world tonnage) in particular are very
respectable.227
There is no doubt that the supervision of any compulsory insurance system will
involve an administrative burden for the regulator,228 and in this sense the position
reached by the Council of the EU was the most cost-efficient, but it has a consider-
able downside in terms of quality control. If a certificate appears to represent the
imprimatur of a respected P&I club, but is in fact a mere forgery, it would require at
least a phone call or two from a suspicious port official to determine the truth.
However, as the Insurance Directive allows for “proved self-insurance”, there
would be no need for a dishonest shipowner to go to such lengths. Instead an
effectively worthless certificate of self-insurance could be presented, and a port
inspector (who is expected to have knowledge of ship safety and security rather
than the world’s insurance market)229 will have no immediate way of verifying the
economic viability of the issuer. At best a port official with suspicions would have
to call in the assistance of another state agency with more specialised staff.
In the absence of such resources being provided to the port state inspectors there
is no realistic way of ensuring the adequacy of insurance certificates produced in
compliance with the Insurance Directive. As a result, if the operator of a substan-
dard vessel wishes to minimise regulatory costs, this instrument will arguably
provide no real protection to any future claimants. A list of approved insurers
224
Bunkers Convention, art 7(1); Athens Convention, art 4bis(1); Wreck Removal Convention, art
12(1); HNS Convention, art 12(1); see similarly Oil Pollution Convention, art VII(1).
225
See Røsæg, “Compulsory Maritime Insurance” (2000), 195–200; Damar, “Compulsory Insur-
ance in International Maritime Conventions” (2009), 157–160.
226
Bunkers Convention, art 7(12); Athens Convention, art 4bis(13); Wreck Removal Convention,
art 12(12); HNS Convention, art 12(13); Oil Pollution Convention, art VII(11).
227
International Maritime Organization, Summary of Status of Conventions (6 March 2013).
228
See Røsæg, “Compulsory Maritime Insurance” (2000), 194; Zhu, Compulsory Insurance and
Compensation for Bunker Oil Pollution Damage (2007), 112–118.
229
See Directive 2009/16/EC of 23 April 2009 on port State control, art 22 and annex XI.
(including those companies reliable enough to self-insure) who could be contacted

by suspicious port state officials, building on the P&I club approach suggested by
the European Economic and Social Committee, could have given greater protection
against sham insurance certificates. However, the costs of such a system would
have to be borne by the Member States, and there is a danger that by favouring one
group of insurers a regulating state might even breach its world trade or competition
law obligations.230
Another protection found in the international conventions, but not in the Insur-
ance Directive, is a provision relating to the term of the insurance. Insurance will
not meet the conventions’ requirements if there is a possibility of the arrangement
being terminated without at least 3 months’ notice being given to the flag state
authorities.231 This prevents a vessel from appearing to have insurance cover on the
face of its certificate (as the expiry date has not yet been reached) when it has in fact
ceased to have effect. While a similar provision would have cost nothing to include
within the Insurance Directive, in the absence of any authority providing oversight
it would lack any real force. Accordingly, there is nothing to prevent certificates
being presented that in truth relate to lapsed insurance arrangements.
Even when insurance certificates are to be inspected by port state inspectors in
accordance with the Insurance Directive it is important to note that not all parties to
the Paris MOU on port state control are Member States, and these non-EU parties
are not bound to enforce EU-specific requirements.232 As a result there may be gaps
in the enforcement of even this requirement, as a vessel inspected in Canada for
example might not be required for inspection at its next EU port call.233
Finally, at a more general level, measures such as the Insurance Directive
represent part of a growing number of tasks that port state officials are being
asked to carry out that go beyond the practicalities of their role. Asking a port
state control officer to check whether a ship’s hull is coated in a banned anti-fouling
paint, or whether its ballast water contains prohibited organisms, stretches the
practicalities of port state control, but even these matters can eventually be
ascertained based on evidence available in port. Insurance is a far less tangible
matter.
Where rules relating to vessel conditions and vessel operations are concerned a
port state can assess visiting vessels for compliance based largely on tangible
evidence available in port. In the case of vessel operations that have occurred
outside of port this is naturally more difficult, but the port state’s air or maritime
patrols might have been able to collect evidence, or evidence may come from the
230
See Zhu, Compulsory Insurance and Compensation for Bunker Oil Pollution Damage
(2007), 116.
231
Bunkers Convention, art 7(6); Athens Convention, art 4bis(6); Wreck Removal Convention, art
12(6); HNS Convention, art 12(5); Oil Pollution Convention, art VII(5).
232
This represents a divergence in enforcement procedures within a system that is supposed to rely
on cooperation and conformity to accepted standards, and may become an issue to watch if the EU
continues its ambitious regime of maritime regulation.
233
See Paris MOU, annexes 7, 8 and 11.
persons on board. In either case the vessel’s presence means crucial evidence and
witnesses are present. By contrast, where most vessel administration requirements
are concerned the real evidence needed to assess compliance is likely to be in the
private records of one or more organisations based far from the port state. For this
reason most port state measures of this kind are far more difficult to enforce
effectively. Officials must rely on certificates or, in the case of the information
requirement under the Cruise Vessel Security and Safety Act the accuracy of online
reports, that may have not have been subjected to oversight by any state’s
authorities. These practical problems need to be borne in mind by port states
wishing to introduce more stringent requirements in this context, but there is not
a lot that can be done without taking on a serious administrative burden of the port
state’s own.
5.4.2.2 Expulsion Orders
Related to these issues of enforcement is the question of what to do if a vessel fails

to satisfy the insurance requirement. Member States can decide on their own
penalties for vessels failing to carry a certificate,234 but there is also the question
of what happens to the vessel itself. The Insurance Directive deals with this by
subjecting any vessel found without an insurance certificate to an “expulsion order”
by the port state control authority of the Member State concerned.235 This power
was only introduced to the draft Directive by the Council of the EU236 (the original
proposal contained no such provision), and can be exercised without prejudice to
the state’s powers of detention under the port state control Directive.237 The effect
of expulsion is to deny the vessel entry to every Member State’s ports, until “the
shipowner notifies the certificate”. This rather awkward phrase presumably refers to
a shipowner informing the port state control authorities of a Member State, or
perhaps even the European Maritime Safety Agency, that the vessel in question
now holds a valid insurance certificate, thus lifting the expulsion order.
In providing a separate remedy for failing to comply with the Directive the
Council appears to have declined to link the insurance requirement to the port state
control Directive, which provides for “access refusal measures” that perform a very
similar role.238 Under the relevant provision a ship inspected in a Member State
234
art 5(2).
235
art 7.
236
Council of the European Union Statement of the Council’s Reasons: Common Position adopted
Council on the insurance of shipowners for maritime claims (24 November 2008, 14287/08
ADD 1), 5.
237
Directive 2009/16/EC of 23 April 2009 on port State control, art 19.
238
Directive 2009/16/EC of 23 April 2009 on port State control, art 16.
must be “refused access to its ports and anchorages” where the ship’s flag state is on
the Paris MOU’s black or grey lists239 and the ship itself has been detained or issued
with a prevention of operation order240 by a Paris MOU state more than twice in the
preceding 36 months (black list) or 24 months (grey list). However, a refusal of
access order can be lifted after 3 months provided the vessel complies with the
inspection procedures provided for in annex VIII, which involve inspections by the
flag state authorities, port state authorities and potentially classification society
surveyors. This process is more onerous than the requirement to simply acquire an
insurance certificate.
It is debatable whether expelling an uninsured vessel from port is the most
appropriate response, given that such an order means the (potentially uninsurable)
vessel is sent back into European waters through which it is free to continue
operating, and could eventually cause the kind of harm the insurance is supposed
to cover.241 This suggests that a better option would have been to provide for the
detention of such vessels until insurance was provided. However, this merely raises
the spectre of uninsured ships abandoned to rust in European ports for months with
unpaid fees, perhaps leaving the local authorities to pay the costs of removal.
Chances are that any vessels that cannot meet the Insurance Directive’s
requirements, and are expelled from EU ports, will simply begin trading in parts
of the world with less stringent requirements. This is a risk inherent in any regional
measure, but the hope of states in the EU Member States’ position must be that
other states around the world will be convinced to adopt similar requirements, so
that unseaworthy vessels must ultimately be scrapped.
5.5 Chapter Summary
The Insurance Directive represents a number of trends in the context of shipping

regulation, one being the growing number of EU measures based on port state
jurisdiction. A further aspect is the Directive’s interaction with a pre-existing
international agreement, namely the 1976 Convention. The decisions the EU
legislators made in the course of developing the Insurance Directive help illustrate
the balance of political and economic influence in this area. The initial, ambitious
aims of the Commission (most importantly the doubling of the 1996 Protocol’s
limits for the purpose of both liability and insurance, as well as relaxing the
standard at which shipowners would lose the right to limit their liability) were
239
240
See Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe
operation of regular ro-ro ferry and high-speed passenger craft services, art 10.
241
If the vessel finds itself in distress, for example, the absence of an insurance certificate does not
provide sufficient reason in itself to deny that vessel access to Member States’ designated places of
refuge: Directive 2002/59/EC of 27 June 2002 establishing a Community vessel traffic monitoring
and information system and repealing Council Directive 93/75/EC, art 20c(1).
not accepted by the Council, which ultimately put forward a much more restrained
piece of legislation. The only area in which the Council was prepared to exercise a
greater level of regulation than the international norm was in making indemnity
insurance compulsory, although even this was at the same level and in relation to
the same claims as those covered by the 1996 Protocol to the 1976 Convention.
While some of the changes made by the Council were based on administrative
costs, the principal argument raised related to the undesirability of having both
international and European standards coexisting in the field of liability.242
Perhaps most interesting (or concerning) issue from an industry perspective is
the expansion of port state interests to include the third party liability insurance a
vessel carries. This insurance, not being directly connected with environmental
matters or passenger protection as with the existing international regimes, has
traditionally been viewed as a private matter for the shipowner to arrange with its
P&I club, and would be an issue regulated by the flag state if at all. Such insurance
is an example of what this book describes as a matter of vessel administration,
something that relates to the arrangements underlying the ship’s operations. Simi-
larly the Cruise Vessel Security and Safety Act’s cruise crime database requirement
impacts on the information a cruise line must make public, as opposed to something
connected with its vessels’ condition of operations. Both go beyond the port state’s
more usual areas of interest, such as vessel safety and environmental issues. The
Insurance Directive represents the EU’s desire to have European claimants
reimbursed in the event of a vessel causing damage. However, the shortfall in
terms of enforcement possibilities, combined with the industry standard that
responsible shipowners already meet in terms of insurance, means that in practice
this instrument is likely to have little real impact.
242
Chapter 6
Port States and Seafarers: Australia’s
Maritime Employment Legislation
This chapter examines Australia’s Fair Work legislation of 2009,1 which brought
seafarers aboard vessels substantially connected with Australia within the scope of
Australian employment legislation, regardless of the seafarers’ nationality or the
flag under which a vessel was operating. It also deals with the 2012 reforms which
followed, including the Coastal Trading (Revitalising Australian Shipping) Act
2012 and the associated amendments to the Shipping Registration Act 1981,
which created the Australian International Shipping Register. These later reforms
had the effect of watering down the application of Australian employment law to
vessels engaged in international trade, while strengthening Australia’s restrictions
on domestic trade.
6.1 Regulating Maritime Employment
The regulation of maritime employment is a complex and sometimes controversial

subject, involving a variety of conflicting interests. Legislatures must tackle the
question of which seafarers to bring within the scope of their legislation, factoring
in matters as diverse as a vessel’s flag, whether it is engaged in domestic or
international trade, the seafarers’ or vessel operator’s country of residence, and
the law potentially applicable to the seafarers’ contracts of employment. Most
seafarers now come from developing nations such as The Philippines and China,
and are highly mobile, being sent from ship to ship through the offices of crewing
agencies. Even if a ship’s owner and operator are based in a jurisdiction with high
employment standards, the ability to flag the vessel offshore and source crew on
low wages from such agencies can give the appearance of putting many shipping
operations beyond the reach of national law.
1
Principally the Fair Work Act 2009 and the accompanying Fair Work Regulations 2009.
162 6 Port States and Seafarers: Australia’s Maritime Employment Legislation
Regulations affecting seafarers can encompass all three of the categories of

regulation outlined in Chap. 3.2 First, vessel conditions concerning the level of a
crew’s training and certification, such as those found in the IMO’s widely-ratified
STCW convention.3 Second, rules on vessel operations relating to a seafarer’s
activities aboard ship, such as maximum working hours restrictions. Third, admin-
istrative matters that do not relate directly to the seafarer’s conduct on board a
vessel, such as their level of wages and leave entitlements. Given the broad scope of
employment as a subject for regulation, this chapter focuses primarily on these last
two categories, and does not discuss safety-related legislation or matters relating to
seafarers’ qualifications.4 The following section identifies some of the key factors
influencing the nature of maritime employment regulations at the national level.
6.1.1 Domestic Trade Considerations
Governments are invariably interested in securing an efficient and cost-effective

transport service for their domestic markets, and in the case of an island nation like
Australia this necessarily involves international shipping.5 In this context the
interests of coastal countries may be reflected in government policies related to
cabotage (also referred to as coastal or coastwise trade), which has been defined as
“the transport of goods or passengers from one port or place in a State to another in
the same State”.6 Restrictive rules relating to this sector can protect a state’s
domestic shipping industry from foreign competition, often with a view to
maintaining a certain number of skilled seafarers and vessels to handle local needs.7
Such restrictions will typically give vessels flying the state’s flag priority over all
other vessels in relation to domestic trade routes. This may be combined with a
requirement that vessels operating under that flag employ predominantly national
crews. For example, no more than 25 % of crew aboard a United States vessel may
2
3
See Anderson, McDowall and Fitzpatrick, “International Standards” (2005), 51–52.
4
See generally Boisson, Safety at Sea: Policies, Regulations and International Law (1999), ch 17.
5
See generally The Parliament of the Commonwealth of Australia, Rebuilding Australia’s Coastal
Shipping Industry: Inquiry into Coastal Shipping Policy and Regulation (October 2008).
6
The term has been applied to both maritime and river transport as well as aviation: Lane,
“Cabotage” (1985), 60–61. For historical background see Unger, The Ship in the Medieval
Economy 600–1600 (1980), 194–195 and 238; Hope, A New History of British Shipping (1990),
105 and 189; Mendes de Leon, Cabotage in Air Transport Regulation (1992), ch 1.
7
Giemulla, “Cabotage” (2008), para 9.
6.1 Regulating Maritime Employment 163
be foreign citizens resident in the United States, and trade between United States
ports is restricted to vessels owned and documented in the United States.8
Australia’s approach to cabotage and employment is discussed in detail below.9
6.1.2 Crew Costs and Flagging-Out
The long-standing connection between flag and crew nationality in the legislation of
traditional maritime nations such as the United Kingdom, the United States and
France is crucial to understanding the now-widespread practice of shipowners
flagging their vessels in open registers like Panama and Liberia. As noted in
Chap. 3, the move towards such registers after World War II was largely due to the
rapid rise in crew costs in countries like Australia where wages and living standards
outstripped those of less developed nations.10 By flagging their vessels offshore,
vessel owners can usually avoid rules requiring the employment of a local crew on
high wages, and instead hire seafarers from countries like India and the Philippines
who will work for much less.11 Although it has been suggested that crewing factors
may be slowly losing importance in comparison to corporate and tax issues,12 crew
costs nonetheless represent around 40 % of a vessel’s total operating costs.13
Australian shipowners have been party to the flagging-out trend, noting in 2009
that their vessels operated under 19 flags of registry and with 25 nationalities of
crew.14 In research conducted in 2006, the Australian Shipowners Association
calculated that Australian ships operate at a cost disadvantage of approximately
AU$3 million per annum compared with foreign ships, the vast majority of which
could be attributed to crew costs.15 A significant factor in this calculation was the
8
46 USC 8103 and 46 USC 55101 and following. The various approaches of the EU Member
States are outlined in ECORYS, Study on the Labour Market and Employment Conditions in Intra-
Community Regular Maritime Transport Services (2009), ch 6.
9
See below Sect. 6.2.2.2, 6.2.4.2 and 6.5.
10
See Chap. 3, Sect 3.1.2. In the employment context see Northrup and Rowan, The International
Transport Workers’ Federation and Flag of Convenience Shipping (1983), 31–42; Comment,
“The Effect of United States Labor Legislation on the Flag-of-Convenience Fleet: Regulation of
Shipboard Labor Relations and Remedies Against Shoreside Picketing” (1960), 499–500.
11
See Couper, “Historical Perspectives on Seafarers and the Law” (2005) 24–29; Branch,
Elements of Shipping (2007), 77–81.
12
McConnell, “‘Making Labour History’ and the Maritime Labour Convention, 2006:
Implications for International Law-Making (and Responses to the Dynamics of Globalization)”
(2009), 359; compare Eadie, “Employment of Foreign Seafarers on Australian Controlled Ships:
Introduction, Shipping Registration Options, and Domestic Legislative Considerations” (2000),
4–5; UNCTAD, Review of Maritime Transport 2011 (2011), 45.
13
Dimitrova, Seafarers’ Rights in the Globalized Maritime Industry (2010), 19.
14
Australian Shipowners Association, Fair Work Bill 2008 Inquiry (27 January 2009), 2.
15
This cost differential has risen from an estimated AU$2 million in 2000: see Eadie, “Employ-
ment of Foreign Seafarers on Australian Controlled Ships: Introduction, Shipping Registration
Options, and Domestic Legislative Considerations” (2000), 8.
need for each Australian vessel to hire two crewmembers per berth to accommodate
leave and other operational requirements, whereas a foreign-crewed vessel would
normally subsist on a crew-to-berth ratio of around 1.15–1.22 (Australian vessel
costs were calculated using a ratio of 1.98–2.03).16 In addition seafarers on ships
covered by Part II of Australia’s Navigation Act 1912 (primarily Australian-flagged
or -owned vessels, or those engaged in the coasting trade)17 must be covered by a
special insurance regime for personal injury,18 which is more expensive than the
P&I cover normally used by shipowners to address such liabilities.19
6.1.3 Regulating Maritime Employment Conditions
Against this background a coastal state like Australia must decide on the balance it
wishes to strike between the employment of seafarers enjoying high local standards,
for example in order to service domestic trade routes under a protective cabotage
regime, and the encouragement of cheaper freight and vessel operating costs by
permitting the employment of seafarers who will work for lower wages. In this
context a key question is whether to allow non-nationals (or non-residents) to be
employed on board vessels operating under the state’s flag, and if so at equivalent or
at cheaper rates than local seafarers.20 A 2009 EU study identified four factors
commonly used by legislators to target the desired groups of seafarers for the
purposes of regulating maritime employment conditions.
First, the country’s flag can be used.21 This factor, along with the other three
discussed below, is often used in a way that distinguishes between the state’s
nationals and non-nationals (sometimes including whether those non-nationals are
resident in the state or not).22 Accordingly, a country’s employment law may apply
to vessels operating under its flag, but only for nationals or residents of that
country.23 By contrast Finnish law provides that all seafarers, regardless of
16
Australian Shipowners Association, Fair Work Bill 2008 Inquiry (27 January 2009), 19–22. See
also The Parliament of the Commonwealth of Australia, Rebuilding Australia’s Coastal Shipping
Industry: Inquiry into Coastal Shipping Policy and Regulation (October 2008), 31–32.
17
Navigation Act 1912, s 10; Seafarers Rehabilitation and Compensation Act 1992, s 19.
18
Seafarers Rehabilitation and Compensation Act 1992; see www.seacare.gov.au.
19
Australian Shipowners Association, Shipping Reform Bills 2012 (19 April 2012), para 4.5.
20
See Leggate and McConville, “The Economics of the Seafaring Labour Market” (2002),
452–454.
21
ECORYS, Study on the Labour Market and Employment Conditions in Intra-Community
Regular Maritime Transport Services (2009), 120–123.
22
In the EU context this usually includes whether a person is a national of another Member State.
ECORYS, Study on the Labour Market and Employment Conditions in Intra-Community Regular
Maritime Transport Services (2009), 126.
23
See ECORYS, Study on the Labour Market and Employment Conditions in Intra-Community
Regular Maritime Transport Services (2009), 106–108.
nationality, serving aboard Finnish-flagged vessels are subject to Finnish employ-

ment standards.24 This latter approach increases the likelihood of local shipowners
flagging their vessels offshore in order to hire cheaper, foreign crews. As a result
some states like Germany and Norway, and most recently Australia, have
introduced a secondary “international” register. Such registers will generally be
aimed at retaining the high safety and environmental standards associated with the
general register, but introduce tax benefits and permit the employment of
non-resident seafarers on less favourable conditions.25 Legislatures that introduce
such registers will hope that local shipowners keep their business operations within
the jurisdiction as a result of these benefits, as opposed to moving offshore.26
A second approach is to target the vessel’s beneficial ownership, distinguishing
the persons who own vessels in a formal, legal sense (for example an offshore
holding company) from those who in fact control the vessels’ operations and benefit
financially from their trading activities. Following this approach, a country’s
domestic employment law will be applied to all seafarers employed by shipowners
(or their representatives) or bareboat charterers based in that jurisdiction.27 This
may be combined with a requirement that the seafarer also be employed on a vessel
operating under that jurisdiction’s flag, so that both the vessel’s flag and its
beneficial ownership are relevant, or alternatively the vessel’s flag may be ignored.
This latter, less common, approach is used for example by the Netherlands meaning
that Dutch employment law will apply to seafarers serving aboard vessels benefi-
cially owned by persons based in the Netherlands regardless of the flag chosen by
the shipowner.28 The risk for legislatures adopting this position is that, if compli-
ance with local employment standards is perceived as being too costly, shipowners
will move not only their vessel’s formal ownership offshore but their entire
business.
Third, a seafarer’s country of residence may be used to determine the employ-
ment law applicable to him or her.29 This protects those local seafarers fortunate
enough to be employed, but in the absence of further restrictions (such as a cabotage
24
Regular Maritime Transport Services (2009), 65, 71 and 78.
25
Regular Maritime Transport Services (2009), 64 and 122.
26
See Norwegian Ministry of Trade and Industry, Steady As She Goes: The Norwegian Maritime
Strategy 2007 (2007), 15–16.
27
Regular Maritime Transport Services (2009), viii and 123.
28
By contrast, a vessel operator not based in The Netherlands could use the Dutch flag without
having to apply Dutch labour conditions to the vessel’s crew: ECORYS, Study on the Labour
(2009), 73 and 124–125.
29
For example, all EU Member States apart from Luxembourg, Latvia and Finland use this
approach, at least for their own nationals: ECORYS, Study on the Labour Market and Employment
Conditions in Intra-Community Regular Maritime Transport Services (2009), 126–128.
regime) it also encourages vessel operators to source cheaper non-national crews.

Relying solely on residence also results in a less integrated approach, as a single
vessel could have a crew made up of diverse nationalities with different groups
subject to different employment conditions.
A fourth option is for a county’s legislature to simply respect whichever
jurisdiction’s law governs the seafarer’s contract of employment.30 This is a
reminder that, no matter how strong a legislature’s intention to regulate employ-
ment is, there are also private law forces at work in the maritime employment
sector. A key example is the role of crewing agencies, usually based in developing
countries like the Philippines, from which nearly all crews are now sourced.
Taking the standard contract for seafarers provided by the Philippines Overseas
Employment Agency (a government body) the contract’s applicable law will be that
of the Philippines as opposed to that of the flag state or the state in which the
vessel’s owner is based.31 Seafarers engaged through such agencies may or may not
be in a direct contractual relationship with the crewing agency, depending on
whether the agency contracts as a principal or agent. Even when acting as agent,
the crewing agency may only be working on behalf of a ship management company,
which in turn does not own the vessel in question but merely manages aspects of its
operations. Neither the crewing agency nor the management company will neces-
sarily be based anywhere near the seafarer’s place of residence, the flag state or the
state in which the vessel’s owner or operator is based.32
6.1.4 The Private International Law Dimension
This contractual flexibility means that private international law considerations are
also highly relevant to the maritime employment sector. A state like Australia might
enact a law with employment conditions its courts must apply in favour of any
seafarer who comes before them, but other courts in other states might not be in a
position to apply this law under their conflict of laws rules. For example, if the
parties have chosen a law other than Australian law to govern the seafarer’s
employment contract then the third party state’s conflict of laws rules might require
that the chosen law applies to the exclusion of any Australian rules. Given their
potential to render a state’s regulatory attempts ineffective outside its own court
system, the impact of these rules is an important consideration for any state
30
This does not mean that the seafarer will necessarily enjoy all the privileges of that country’s
law, as these may be extended only to that country’s nationals: ECORYS, Study on the Labour
(2009), 128.
31
See Philippines Overseas Employment Agency, Standard Terms and Conditions Governing the
Employment of Filipino Seafarers On Board Ocean Going Vessels (undated).
32
Couper, “Historical Perspectives on Seafarers and the Law” (2005), 29–30.
attempting to regulate such a global, highly mobile industry—and are even more
central from the perspective of a prospective litigant.
6.1.5 The Public International Law Dimension
Having decided upon the approach it wishes to adopt in order to apply its maritime
legislation, a state must also decide whether to adopt standards consistent with
international norms. The international community has long recognised the
inherently international nature of maritime employment, the economically and
socially vulnerable position of seafarers, and the importance of the “human ele-
ment” to maintaining high standards in shipping. However, efforts to regulate
employment standards such as wages and working hours at a global level
(as opposed to the IMO’s widely-ratified STCW agreement on training and
watch-keeping for example) have been rather ineffective to date.33 Prior to 2006
the ILO developed some eight core conventions as well as over 40 separate
shipping-related conventions,34 but this number masks a less impressive reality35:
The agency of the flag State is the sine qua non to the concrete enjoyment of labour
standards by seafarers. And since there is no rule or principle in international law that
would compel a State to ratify a maritime labour treaty, or any treaty for that matter, much
of the rights and standards remained fictional. In the decentralized international society of
sovereign flag States, the regime of seafarer’s rights was in reality a confusing gamut of flag
State jurisdictions displaying varying commitments or non-commitments to ILO labour
standards. The generally uneven and low rate of ratifications of maritime labour
conventions by flag States testifies to the basic difficulty of achieving globally significant
effective minimum standards.
This position is bolstered by UNCLOS, which places general obligations in

relation to employment only on flag states.36 Article 94 relevantly provides that:
1. Every State shall effectively exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag.
33
Anderson, McDowall and Fitzpatrick, “International Standards” (2005), 71–72.
34
For descriptions of the most relevant examples see generally Anderson, McDowall and
Fitzpatrick, “International Standards” (2005). Australia has been a reasonably active participant
in these conventions: see Eadie, “Employment of Foreign Seafarers on Australian Controlled
Ships: Domestic Industrial Legislation and Maritime Awards, International Conventions of the
International Labour Organisation and the International Maritime Organisation, and the Interna-
tional Transport Workers’ Federation” (2000), 8–12.
35
Payoyo, “The Contribution of the 2006 ILO Maritime Labour Convention to Global Gover-
nance” (2009), 398; see similarly Churchill, Fitzpatrick and Khaliq, “Seafarers’ Rights at the
National Level” (2005), 152–153; Dimitrova, Seafarers’ Rights in the Globalized Maritime
Industry (2010), 75.
36
McConnell, “‘Making Labour History’ and the Maritime Labour Convention, 2006:
(2009), 355.
2. In particular every State shall:

[. . .]
(b) assume jurisdiction under its internal law over each ship flying its flag and its master,
officers and crew in respect of administrative, technical and social matters concerning the
ship. [. . .]
In this context “social matters” can be read as including employment matters,

and although the precise extent of the phrase in this context is unclear,37 it has been
argued that it encompasses all ILO conventions.38 Like UNCLOS these
conventions have maintained a flag state focus: none of the core ILO instruments
oblige port states to apply their domestic requirements to visiting vessels, and the
role of port states in the shipping-specific conventions is ambiguous.39
More recently the ILO’s Maritime Labour Convention (MLC) of 2006 has been
adopted with broad support amongst states and the shipping industry. Revising
68 of the ILO’s previous conventions its comprehensive nature signals an ambitious
new approach to maritime employment issues, incorporating both mandatory
standards and non-mandatory guidelines.40 As with UNCLOS and other ILO
conventions the MLC places the main responsibility for compliance on flag states,41
with port states performing inspections primarily to confirm that the necessary flag
state certificates are on board.42 However, there is also a novel set of responsibilities
placed directly upon states parties that supply maritime labour, requiring them to
ensure that the MLC’s provisions on the recruitment, placement and social security
of seafarers are implemented in respect of their residents.43 The MLC, which will
enter into force on 20 August 2013, was signed by Australia in December 2011.44
6.1.6 The Scope for Unilateral Regulation
Despite the existence of an international regime applicable to maritime employ-

ment law, a state may still decide that it wishes to introduce unilateral standards.
Acknowledging this, the ILO Constitution explicitly permits states to introduce
37
See Churchill, Fitzpatrick, and Khaliq, “Seafarers’ Rights at the National Level” (2005),
136–137.
38
Mansell, Flag State Responsibility (2009), 161.
39
Churchill, Fitzpatrick, and Khaliq, “Seafarers’ Rights at the National Level” (2005), 156–157.
40
Maritime Labour Convention (23 February 2006) (MLC). A list of the revised conventions is
included at art X. For background see McConnell, “‘Making Labour History’ and the Maritime
Labour Convention, 2006: Implications for International Law-Making (and Responses to the
Dynamics of Globalization)” (2009); Payoyo, “The Contribution of the 2006 ILO Maritime
Labour Convention to Global Governance” (2009).
41
MLC, reg 5.1
42
MLC, reg 5.2.1.
43
MLC, reg 5.3
44
The MLC currently has 39 parties representing 69 % of the world’s tonnage. The ratifications of
Panama and Liberia have boosted the tonnage figure considerably.
arrangements more favourable to workers than those agreed to in any ILO conven-
tion or recommendation.45 While this permits states to extend very high employ-
ment standards to their own residents, for the purposes of this discussion such
developments will become relevant where they affect non-resident seafarers aboard
foreign-flagged vessels.
This is a major step to take. The regulating state is essentially saying that your
crew may not be from these shores, and your vessel does not fly our flag, but you are
here now and like it or not you are going to apply our employment laws. Unsurpris-
ingly examples of such initiatives are difficult to come by. One early twentieth
century precedent from the United States involved a law aimed at addressing the
then widespread problem of “crimping”.46 A number of non-American victims of
this practice who arrived in the United States in foreign-flagged ships made
successful claims in United States courts concerning the legality of wages paid to
them in advance in other countries. The Supreme Court held that in this context it
had been Congress’ express intention to extend the protection of United States law
to both foreign and domestic seafarers.47
This was followed in the mid twentieth century by a string of cases argued at the
Supreme Court level determining whether visiting foreign seafarers could rely on a
particular United States employment standard, or whether the legislation in ques-
tion was not intended to cover their employment contracts/vessels. Such claims
involved seafarers seeking advances on wages earned,48 as well as the application
of United States laws on seamen’s compensation49 and trade union rights.50 The
Supreme Court’s response was invariably to express no doubt that Congress could
pass a law controlling “the employment and payment of seamen as a condition of
the right of such foreign vessels to enter and use the ports of the United States”,51
but the plaintiffs very rarely succeeded. These examples did not suggest any strong
desire on the part of the United States legislature to reform the employment
conditions of seafarers around the globe. Usually the statute in question was simply
45
Constitution of the International Labour Organisation (1 April 1919), art 19(8); see also the
preamble to the MLC, which refers to this provision.
46
This involved persons such as lodging-house owners who would prey on seafarers, converting
promised pay into ready cash before helping them spend it (usually on liquor), before producing
them on board ship: see Patterson v Bark Eudora 190 US 169 (1903) (SC), 175; Course, The
Merchant Navy: A Social History (1963), 221 and 240–244; Hope, A New History of British
Shipping (1990), 263.
47
Patterson v Bark Eudora 190 US 169 (1903) (SC); Sandberg v McDonald 248 US 185 (1918)
(SC); Jackson v SS Archimedes 275 US 463 (1928) (SC).
48
Strathearn Steamship Co Ltd v Dillon 252 US 348 (1920) (SC); see also Bickel, “Strathearn SS
Co v Dillon: An Unpublished Opinion by Mr Justice Brandeis” (1956).
49
Lauritzen v Larsen 345 US 571 (1953) (SC).
50
Benz v Compania Naviera Hidalgo SA 353 US 138 (1957) (SC); McCulloch v Sociedad
Nacional de Marineros de Honduras 372 US 10 (1963) (SC); see also Incres Steamship Co Ltd
v International Maritime Workers Union 372 US 24 (1963) (SC).
51
Strathearn Steamship Co Ltd v Dillon 252 US 348 (1920) (USSC), 356; see similarly Benz v
Compania Naviera Hidalgo SA 353 US 138 (1957) (SC), 142.
ambiguous and it was left to the Supreme Court to assess whether it was intended to
apply to foreign vessels,52 a task the Court carried out with a keen awareness of the
international issues involved,53 as well as the sensitivity of employment matters in
the shipping sector.54
In the 1990s both the United States, in the form of the Clay Bill,55 and the EU, in
the form of a proposal on manning conditions on regular passenger and ferry
services,56 considered the possibility of applying domestic employment conditions
to certain non-resident seafarers. However, neither jurisdiction has yet gone ahead
with such ideas, and the EU’s recent activities suggest an intention to apply only the
internationally-agreed standards of the MLC in conjunction with its port state
control regime.57
This handful of examples hints at the political obstacles confronting any port
state seeking to introduce unilateral employment regulations impacting on foreign-
flagged vessels. While the state’s intention might be to improve seafarer welfare, or
prevent international interests from undercutting the domestic fleet, it is likely to
face considerable opposition both at home and abroad. Such legislation is likely to
increase the operating costs of any domestic vessel operators employing foreign
crew at reduced rates, leading to complaints that they are unable to compete on the
global market.58 Meanwhile domestic freight rates may well increase as higher
crew costs are passed on to consumers, a factor that may not be popular with sectors
of the voting public far more vocal than foreign seafarers.
With this background in mind some might question Australia’s ability to exer-
cise much influence on international shipping as a port state, but such an attitude
would overlook Australia’s considerable influence in the Asia-Pacific region.
52
Lauritzen v Larsen 345 US 571 (1953) (SC), 577.
53
For discussion see Comment, “The Effect of United States Labor Legislation on the Flag-of-
Convenience Fleet: Regulation of Shipboard Labor Relations and Remedies Against Shoreside
Picketing” (1960); McDougal and Burke, The Public Order of the Oceans: A Contemporary
International Law of the Sea (1962), 158–161; Akehurst, “Jurisdiction in International Law”
(1972–1973), 184 and 189–190.
54
Churchill, Fitzpatrick and Khaliq, “Seafarers’ Rights at the National Level” (2005), 155.
55
See Shupp, “The Clay Bill: Testing the Limits of Port State Sovereignty” (1994).
56
European Commission, Communication on a common policy on manning of regular passenger
and ferry services operating in and between Member States (29 April 1998); See more recently
Maritime Transport Services (2009).
57
See European Commission, Proposal for a Directive of the European Parliament and of the
Council amending Directive 2009/16/EC on port State control (23 March 2012). The domestic
employment standards of the EU Member States are generally more protective than the interna-
tional standards represented by the MLC (at 2), and where this was not necessarily the case aspects
of the MLC have since been incorporated into EU law and applied by EU flag states, see Directive
2009/13/EC of 16 February 2009 implementing the Agreement concluded by the European
Community Shipowners’ Associations (ECSA) and the European Transport Workers’ Federation
(ETF) on the Maritime Labour Convention, 2006, and amending Directive 1999/63/EC.
58
See Australian Shipowners Association, Fair Work Bill 2008 Inquiry (27 January 2009), 3.
6.2 Australia’s Approach to Maritime Employment 171
Australian government sources describe Australian ports as “managing 10 per cent

of the world’s sea trade”.59 Its principal export partners are in East Asia, namely
China, Japan, the Republic of Korea, India, Singapore and Taiwan (in descending
order of trade volumes), all of which benefit from access to Australia’s rich mineral
resources.60 In order to service these trade connections, some 4,344 vessels made
11,392 voyages from international waters into Australian ports in the 2009–2010
period61 (by comparison, the United States hosted calls from 7,579 ocean-going
vessels in 201062). Long-term government projections suggest that these numbers
will continue to increase steadily over the coming decades.63 As a result Australia
has a reasonable opportunity to exercise some influence on international shipping
through the introduction of unilateral regulations based on port state jurisdiction.
6.2 Australia’s Approach to Maritime Employment
Australia’s reforms of its maritime employment law touch on all the matters
outlined above. The Fair Work legislation overlooks vessel flag, seafarer national-
ity, and the law stated as applicable to individual employment contracts in favour of
applying stringent Australian employment standards to vessels with other signifi-
cant connections to the jurisdiction. This is a significant step to have taken: by way
of comparison, a study conducted just prior to the Fair Work Act’s introduction
found that no EU Member State had made a similar attempt to regulate employment
conditions aboard over foreign-flagged vessels.64 More recently Australia has
attempted to promote and protect its domestic shipping fleet through cabotage
restrictions, as well as introducing an international register to encourage local
shipowners not to move their business offshore. This has had an indirect, though
significant impact on the Fair Work legislation’s application to foreign-flagged
shipping.
59
Parliament of the Commonwealth of Australia, Coastal Trading (Revitalising Australian
Shipping) Bill 2012: Revised Explanatory Memorandum (2012), 1.
60
Australian Government, Department of Infrastructure and Transport, Statistical Report: Austra-
lian Sea Freight 2009–10 (September 2011), 10. Imports are primarily sourced from China, Japan,
the United States, Singapore, Thailand and Germany. See also UNCTAD, Review of Maritime
Transport 2011 (2011), 16–21.
61
lian Sea Freight 2009–10 (September 2011), 35–36.
62
2010 (May 2011), 1.
63
Australian Government, Department of Infrastructure, Transport, Regional Development and
Local Government, Statistical Report: Australian Maritime Activity to 2029–30 (April 2010), ch 5.
64
Molenaar, Oude Elferink and Prevost, Study on the Labour Market and Employment Conditions
in Intra-Community Regular Maritime Transport Services Carried Out by Ships under Member
States’ or Third Countries’ Flags: Aspects of International Law (2008), 105.
6.2.1 Background to the Fair Work Legislation
The Fair Work Act 2009 is a substantial piece of legislation, forming the backbone
of Australia’s employment law.65 It is supplemented by the Fair Work Regulations
2009. The legislation was introduced to Parliament in November 200866 as a key
initiative of Australia’s then newly-elected centre-left Labor Government, and was
signed into law in April the following year. The legislation was intended to “place a
strong emphasis on ensuring fairness for employees, balanced against the flexibility
and competitiveness needs of employers” as well as promoting a move “away from
individual employment relationships as a primary form of regulation, towards
collectively-determined terms and conditions of employment and the rights of
employees and unions to organise and bargain collectively”.67
The Act’s central focus is a set of ten “National Employment Standards”, which
are minimum entitlements for employees including68:
– Maximum weekly hours of 38 per week, plus reasonable overtime;
– Requests for flexible working arrangements where the employee is caring for a
child;
– Paid and unpaid parental leave and related entitlements;
– Four weeks’ annual leave;
– Ten days’ annual sick or compassionate leave;
– Community service leave;
– Long service leave;
– Public holidays;
– Redundancy pay and procedures;
– Access to the “Fair Work Information Statement”.
The Act also covers trade unions, collective bargaining rights and industrial
action, and establishes two regulatory authorities (Fair Work Australia and the
Office of the Fair Work Ombudsman) along with various offences and penalties.
At the general level, in order to come within the Act’s scope an employer must
be a “national system employer”,69 the definition of which includes a person who
employs a “maritime employee”70 in connection with “constitutional trade or
65
For a general overview see Forsyth et al, Navigating the Fair Work Laws (2010).
66
Fair Work Bill 2008.
67
Forsyth et al, Navigating the Fair Work Laws (2010), p 5; see also Fair Work Act 2009, s 3.
68
See Fair Work Act 2009, s 61(2). See generally Forsyth et al, Navigating the Fair Work Laws
(2010), ch 4.
69
Fair Work Act 2009, s 14. This term is used to distinguish employment relationships governed
by the Act from specified residual categories, including certain public sector employment
relationships at the state level: see Forsyth et al, Navigating the Fair Work Laws (2010) 13–15.
70
Maritime employees are seamen and masters as defined by the Navigation Act 1912, a seaman
being “a person employed or engaged in any capacity on board a ship on the business of the ship”:
see Fair Work Act 2009, s 12; Navigation Act 1912, s 6. From July 2013 see the equivalent
definition in the Navigation Act 2012.
commerce”.71 Putting to one side the more detailed provisions relating to shipping
(discussed below), these general definitions will comfortably apply to any merchant
vessel operator employing seafarers. “National system employees” are simply
defined as people employed by national system employers.72 There is no require-
ment that such persons be citizens or residents of Australia.
6.2.2 Application of the Fair Work Legislation

to Foreign-Flagged Vessels
Australia has not attempted to apply its employment standards to every foreign-
flagged vessel that enters an Australian port. A Maltese-flagged vessel with an
Indian crew operating a liner service on behalf of a Rotterdam-based shipping
company will come and go from its single Australian port call in Brisbane without
having to concern itself with the 1,000-plus pages of Fair Work legislation. Instead
the legislation discloses two distinct intentions. The first is to bring foreign-flagged
vessels that are substantially connected with Australia (for example those owned by
Australian companies) within the legislation’s scope. The second is to apply
selected Australian employment standards to foreign-flagged vessels engaged in
Australia’s cabotage trade.
To achieve these goals the legislation defines four categories of ship73 in addition to
ships with Australian nationality (e.g. those registered in Australia),74 namely
Australian-based ships, majority Australian-crewed ships, offshore services vessels,
and licenced ships.75 It then sets out which categories of vessel the legislation will
apply to depending on the vessels’ geographical location, for example within
Australia’s EEZ.
71
This defined phrase includes both trade between places within Australia and trade between
Australia and a place outside Australia: Fair Work Act 2009, s 12.
72
Fair Work Act 2009, s 13.
73
In general terms a “ship” is defined as including “a barge, lighter, hulk or other vessel”: Fair
Work Act 2009, s 12. Australia’s previous employment legislation was not so specific. Certain
parts of it applied in the EEZ and above the continental shelf, but it did not make specific
references to categories of ships: see Workplace Relations Act 1996, s 13.
74
Fair Work Act 2009, ss 12 (definition of Australian ship), 33(1)(a) and 34(1)(a); Shipping
Registration Act 1981, s 29.
75
There is likely to be some overlap between the categories, for example an Australian-based ship
may also be a licenced ship, but the key point for the purposes of this discussion is that any of these
classes of vessel may include a foreign-flagged vessel.
6.2.2.1 Vessels Connected with Australia
The first three categories of vessel listed above have significant connections to
Australia, meaning in practical terms that they will keep returning to Australian
ports on a relatively frequent basis. The first of these is the Australian-based ship,
which is defined under the Fair Work Act as76:
any ship, [. . .] that:
(i) is operated or chartered by an Australian employer; and
(ii) uses Australia as a base.
The requirement that the vessel use Australia as a base is not defined further
within the Act, a matter that was criticised by shipowners at the time of the Act’s
passage through Parliament.77 There would obviously be the need for a vessel to
spend time in Australian ports on a regular basis, even if the vessel was plying
international trade routes throughout the year. The criterion might be satisfied if the
vessel routinely returned to Australian ports to collect cargo, take on provisions,
and organise maintenance between international voyages. Given the nature of
international maritime trade the vessel could still spend many more days per year
outside of Australia’s maritime zones than within them and still be “based” in
Australia.
“Australian employer” is defined by section 35 of the Fair Work Act, and the
concept includes corporations established within Australia and Australian govern-
ment authorities, as well as an employer that78:
carries on in Australia, in the exclusive economic zone or in the waters above the
continental shelf an activity (whether of a commercial, governmental or other nature),
and whose central management and control is in Australia.
It is notable that there is no reference to the vessel’s flag state in the definitions
relevant to this category of vessel. A Liberian-flagged ship could be on demise
charter to an Australian company and still be subject to the Fair Work Act. An
Australian shipowner could even create a holding company in Panama, transfer its
ship to that company to operate under the Panamanian flag, and have that company
employ a Filipino crew on contracts subject to Filipino employment law. However,
if the Panamanian company’s “central management and control” remained in
Australia, for example the company’s directors were all based in Australia and
decisions about its trading activities were made there, this would not be enough to
escape the application of the Fair Work Act.
An additional category of “Australian employer” introduced by the Fair Work
Regulations is the “employer of a person who is a member of the crew performing
76
Fair Work Act 2009, ss 33(1)(d) and 34(1)(b).
77
Australian Shipowners Association, Fair Work Bill 2008 Inquiry (27 January 2009), pp 9–10.
78
Fair Work Act 2009, s 35(1)(f).
duties on a majority Australian-crewed ship”.79 A “majority Australian-crewed

ship” is in turn defined as80:
a ship (other than an Australian ship, [or licensed ship]) of which:
(a) the majority of the crew are residents of Australia; and
(b) the operator:
(i) is a resident of Australia; or
(ii) has its principal place of business in Australia, or
(iii) is incorporated in Australia.
The provisions dealing with this category of vessel involve a long chain of
statutory definitions,81 essentially stating that, to be covered by the Act, (1) an
Australian-based vessel,82 (2) must be chartered or operated by the employer,83
(3) of a person who works aboard a ship,84 (4) operated by an Australian-based
company,85 (5) of which the majority of the crew are Australian residents.86 In
other words, a majority Australian-crewed ship is effectively a sub-category of
Australian-based ship.
Even with all the factors connecting such a vessel with Australia, there is still
scope for a “majority Australian-crewed ship” to be a foreign-flagged vessel,
although given the approach to crewing this category entails the Australian-based
operator would most likely have flagged out for reasons not primarily connected
with lower crew costs. The definitional criteria are based on the crew’s nationality
and the operator’s place of business, which have no bearing on the vessel’s flag.
The third category of vessel relevant to this section is the offshore services
vessel, namely87:
(c) any ship, [. . .] that:
(i) supplies, services or otherwise operates in connection with a fixed platform in
[Australia’s] exclusive economic zone or in the waters above the continental
shelf; and
(ii) operates to and from an Australian port [. . .]
The most obvious example of a vessel within this category would be one that
services an offshore oil or gas rig in Australia’s EEZ, going to and from Australian
ports to transport workers and supplies or transfer cargo to shore. The implication of
79
Fair Work Regulations 2009, reg 1.15C.
80
Fair Work Regulations 2009, reg 1.15B.
81
This category of vessel appeared in section 10(c) of the Navigation Act 1912, which was
presumably the reason for its inclusion in the Fair Work Legislation. However, it does not feature
in the Navigation Act 2012, which replaces the older legislation from July 2013.
82
Fair Work Act 2009, ss 33(1)(d)(ii) and 34(1)(b)(ii).
83
Fair Work Act 2009, ss 33(1)(d)(i) and 34(1)(b)(i).
84
Fair Work Regulations 2009, reg 1.15C.
85
Fair Work Regulations 2009, reg 1.15B, definition of “majority Australian-crewed ship” para (b).
86
Fair Work Regulations 2009, reg 1.15B, definition of “majority Australian-crewed ship” para (a).
87
Fair Work Act 2009, s 33(1)(c).
the definition is that the vessel will be visiting only Australian ports, as opposed to
going from an Australian port to an Indonesian port and back via an offshore rig.
This places such vessels firmly within Australia in a geographic and operational
sense, but the vessel’s flag, crew and ownership could all be based offshore and still
be required to meet the requirements of the Fair Work Act. For example, a specialist
Danish vessel with a Danish crew spending six months upgrading a rig off the coast
of Western Australia.
These three categories leave vessels that have only a fleeting connection with
Australia outside the scope of the Fair Work legislation, such as those that call
regularly at an Australian port on a liner service but are otherwise flagged, crewed,
and owned offshore. Looking at the issue from the perspective of an Australian-
based shipowner who wishes to avoid the application of the Act, it would require
either not using Australia as the ship’s base, perhaps arranging refitting and
maintenance out of an Asian port, or else shifting the “effective management and
control” of the shipowner’s business out of Australia. Otherwise, no matter how
inventive the legal arrangements behind it, it is difficult to envisage a scenario in
which a shipping operation could retain these two characteristics and not be deemed
to be carrying on a commercial activity in Australia, so as to come within the
definition of Australian employer under section 35 of the Act.
Conversely, a shipowner based outside of Australia has no chance of becoming
entangled in the Act’s requirements provided its vessels do not attempt to service
Australian oil and gas rigs. The legislation was not designed to surprise genuine
foreign operators, but to ensnare locals relying on offshore legal structures.
6.2.2.2 Vessels Engaged in Cabotage
In addition to vessels with significant connections to Australia, the Fair Work

legislation also applies to vessels licensed to engage in Australia’s cabotage
trade.88 Since mid 2012 Australia’s cabotage regime has encompassed three
categories of licensed ships: those with general licences to engage in cabotage
trade, which must be on Australia’s general shipping register89; those with tempo-
rary licences, which may be foreign-flagged or on Australia’s international shipping
register90; and those with emergency licences, issued in the case of natural
disasters.91
88
Fair Work Regulations, regs 1.15B, 1.15D and 1.15E(1). As enacted the legislation applied to
“licensed ships” ad “permit ships”, which were the terms used in the pre-2012 cabotage regime.
This regime was repealed by the Coastal Trading (Revitalising Australian Shipping) (Consequen-
tial Amendments and Transitional Provisions) Act 2012, sch 1, cl 5.
89
Coastal Trading (Revitalising Australian Shipping) Act 2012, pt 4, div 1.
90
Coastal Trading (Revitalising Australian Shipping) Act 2012, pt 4, div 2.
91
Coastal Trading (Revitalising Australian Shipping) Act 2012, pt 4, div 3; Coastal Trading
(Revitalising Australian Shipping) Regulations 2012, reg 4.3.1. Due to their extraordinary nature,
these licences are not discussed further.
Seafarers engaged on vessels authorised to engage in Australia’s coastal trade

had been paid at Australian wage rates long before the Fair Work legislation came
into force,92 but the 2009 legislation extended full Australian employment rights
such as leave entitlements as well.93 The 2012 licensing system has not removed
these employment law entitlements, but is more restrictive than the previous
cabotage regime. General licences now restricted to Australian-flagged and -crewed
vessels only,94 while the temporary licences available to foreign vessels are subject
to a more rigorous application process and (unlike the now-defunct single voyage
permit) are issued on the condition that the vessel carries out a minimum of five
coastal voyages.95 Therefore, while seafarers on foreign-flagged, licensed vessels
will continue to enjoy Australian employment law privileges, the 2012 reforms
indicate that the government hopes fewer such vessels will be needed.
6.2.3 Substantive Requirements of the Fair Work Legislation
As it is beyond the scope of this work to examine all elements of Australia’s

detailed employment legislation, this chapter focuses on two of the most significant
topics as far as international shipping is concerned, namely minimum wages and
working hours. However, one of the core aims of the Fair Work Act is to create “a
guaranteed safety net of fair, relevant and enforceable minimum terms and
conditions”.96 Accordingly, when it is applied to vessels, it is important to bear in
mind that the employment matters aboard those vessels are covered in a compre-
hensive manner, and that any complaints or disputes arising may be dealt with by
the Australian authorities. The legislation is not just about minimum standards, but
an entire system of workplace relations including mechanisms to investigate and
resolve disputes of an employment-related nature.
The detailed provisions of the working hours and wages for seafarers are set out
in the Seagoing Industry Award 2010,97 one of the “modern awards” covering a
variety of industry sectors and administered by the government agency Fair Work
Australia.98 The employment standards enjoyed by seafarers under the Award are
92
Navigation Act 1912, ss 288(3)(c) and 289–292.
93
An approach of this nature was suggested by Australia’s maritime unions during a 2008 review:
The Parliament of the Commonwealth of Australia, Rebuilding Australia’s Coastal Shipping
Industry: Inquiry into Coastal Shipping Policy and Regulation (October 2008), 28–29.
94
Coastal Trading (Revitalising Australian Shipping) Act 2012, s 21. The crew may be either
Australian citizens or non-nationals with an appropriate work visa. Compare Navigation Act 1912,
ss 7 and 288–292; Navigation (Coasting Trade) Regulations 2007.
95
Coastal Trading (Revitalising Australian Shipping) Act 2012, s 28(2)(a). Compare Navigation
Act 1912, s 286.
96
Fair Work Act 2009, s 3(b).
97
The version of the award discussed here incorporates amendments up to 13 January 2013.
98
Fair Work Act 2009, pt 2, div 3. See generally Forsyth et al, Navigating the Fair Work Laws
(2010), ch 5.
significantly higher than the international average. In other words, although the
MLC and some older ILO instruments cover a number of issues that are also
addressed under the Fair Work legislation, including wages, working hours and
leave entitlements,99 Australia has chosen to introduce its own more stringent
standards.
6.2.3.1 Working Hours
For the three categories of “vessels connected with Australia”, outlined above, and
Australian vessels that operate in the cabotage trade on a general licence, the Fair
Work Act’s standard of 38 working hours per week applies as a baseline (although
the minimum salaries provided for in the Seagoing Industry Award 2010 are
calculated on a basis of 70 hours per week to account for overtime and other
demands of work at sea).100 The Award also contains an industry-specific exception
to the standard working hours provided for under the Act, extending this to eight
hours per day for “operational and maintenance work”, with 12 hours shifts in
exceptional circumstances.101 Where vessels are engaged in the Australian coastal
trade on a temporary licence the Act’s 38 hours per week baseline is extended to
40 hours (8 hours per day, with 2 days of rest).102 The working hours in each case
are less than the ILO standard of 48 hours a week (8 hours per day with 1 day of
rest),103 demonstrating the comparatively favourable employment conditions avail-
able to Australian seafarers.104
Rules affecting crew working hours fall within the category of regulations
governing vessel operations for the purposes of this work.105 The number of
hours worked by each crewmember each week may differ greatly depending on a
number of circumstances including whether the vessel is spending any time in port,
weather conditions, and casualties or illness amongst the crew. Taking for example
99
See especially MLC, regs 2.2–2.4.
100
Seagoing Industry Award 2010, paras 10.2 and 13.3.
101
See Seagoing Industry Award 2010, para 17.
102
Seagoing Industry Award 2010, para 26.
103
Seafarers’ Wages, Hours of Work and the Manning of Ships Convention (ILO Convention
180, 22 October 1996), art 4; MLC, reg 2.3. This is the standard enforced by the EU in relation to
visiting foreign vessels: see Directive 1999/63/EC of 21 June 1999 concerning the Agreement on
the organisation of working time of seafarers concluded by the European Community Shipowners’
Association (ECSA) and the Federation of Transport Workers’ Unions in the European Union
(FST); Directive 1999/95/EC of 13 December 1999 concerning the enforcement of provisions in
respect of seafarers’ hours of work on board ships calling at Community ports. See also STCW
Code, s A-VIII/1.
104
There is also a significant gap between legal limits on hours worked and actual hours worked
for many seafarers: Dimitrova, Seafarers’ Rights in the Globalized Maritime Industry (2010),
pp 55–56.
105
See Chap. 3, Sect. 3.3.3.2 and Chap. 4, Sect. 4.4.
the situations provided for in the Seagoing Industry Award relating to rest and
physical exhaustion,106 the requirement for a crewmember with watch duties to
have 10 hours of rest in each 24 hours period could be breached as a one-off event at
sea. Unlike a rule governing vessel conditions, not all relevant events will neces-
sarily be attributable to the vessel’s time in port.
6.2.3.2 Minimum Wage
The Fair Work Act sets a minimum wage, which for seafarers is detailed in the
Seagoing Industry Award 2010,107 and reviewed annually.108 For the categories of
“vessels connected with Australia”, outlined above, and Australian vessels that
operate in the cabotage trade on a general licence, the applicable aggregate annual
salary (including a substantial overtime component)109 for the lowest-paid
positions is around AUS$53,000 per annum (approximately US$55,000 or
€43,000) for a dry cargo vessel,110 rising to over AUS$62,500 per annum (approxi-
mately US$65,000 or €51,000) for a gas carrier.111 There are also a number of
additional allowances and benefits, for example providing additional money for
cargo handling and tanker work,112 or meeting travel or medical expenses.113 This
is significantly higher than the basic pay for an equivalent position, even under an
International Transport Federation (ITF) standard contract, which is around US
$17,400 excluding overtime (approximately AU$16,700 or €13,500).114 The
framers of the MLC itself steered clear of imposing any definite figures in the
106
See Seagoing Industry Award 2010, para 17.5.
107
See Fair Work Act 2009, pt 2, div 3 and pt 2, div 6.
108
Fair Work Act 2009, ss 285 and 617.
109
“The aggregate salaries are based on work for 10 hours per day (70 hours per week) for
27 weeks per year over seven days a week with: (a) eight hours per day at ordinary time; (b) two
hours per day at double time; and (c) the balance of hours above 38 ordinary hours per week
(56 hours less 38 ordinary hours) at double time.” Seagoing Industry Award 2010, para 13.3.
110
Seagoing Industry Award 2010, para 13.1(a).
111
Seagoing Industry Award 2010, para 13.1(f).
112
113
114
International Transport Federation ITF Standard Collective Agreement (1 July 2012), annex 1. The
Standard Contract is the most costly for the vessel owner, and is “normally signed as a result of
industrial action or if a company is found to have broken a previous agreement”: International
Transport Federation: http://www.itfseafarers.org/itf_agreements.cfm. For further wage comparisons
see Australian Shipowners Association, Fair Work Act 2009 Review (17 February 2012),
appendix 1. On ITF contracts generally see Dimitrova, Seafarers’ Rights in the Globalized Maritime
Industry (2010), 43–45. Dimitrova also notes that Australia has among the highest wages for ratings in
the world (at 59).
area of wages,115 with the minimum wage provision taking the form of an optional
guideline with little more than a reference to the (similarly broad) international
labour standards on wage-fixing.116
Where vessels are engaged in the Australian coastal trade on a temporary licence
weekly minimum wages are set, with the lowest-paid position at AUS$757.00
(approximately US$789 or €616), not including leave or overtime allowances.117
By comparison, the basic monthly pay for a person in an equivalent position under
the current ITF Standard Contract equates to around US$362 per week (approxi-
mately AU$348 or €283), not including leave or overtime allowances,118 while the
ITF Total Crew Cost Agreement equates to around US$427 per week (approxi-
mately AU$410 or €334) including leave and overtime allowances.119 The ILO
basic wage is lower, equating to about US$244 per week (approximately AU$234
or €191) including leave and overtime allowances.120 Even leaving room for
changing currency rates these comparisons demonstrate that Australia’s minimum
wage for crews on foreign vessels covered by the Fair Work Act is far higher than
that vessel’s crew is otherwise likely to be earning, even with an ITF contract.
Rules affecting crew wages fall within the category of regulations governing
vessel administration for the purposes of this work.121 The wages paid to the crew
represent an organisational matter underpinning the vessel as a commercial enter-
prise, and will be the subject of contracts that have most likely been made outside
the port state—and governed by the law of another jurisdiction.
115
This was not the case with earlier ILO conventions and recommendations on the subject of
wages (none of which have entered into force). See for example Wages, Hours of Work and
Manning (Sea) Convention (29 June 1946), article 5 of which would have introduced a basic wage
for seafarers of US$64 per month (with an adjustment mechanism). This amount continues to be
updated to reflect an appropriate monthly figure, based on the ILO’s Wages, Hours of Work and
Manning (Sea) Recommendation (14 May 1958), see Anderson, McDowall and Fitzpatrick,
“International Standards” (2005), 71.
116
MLC, reg B2.2.3; See Anderson, McDowall and Fitzpatrick, “International Standards” (2005),
70–71.
117
Seagoing Industry Award 2010, para 24; for special allowances, ordinary working hours,
holidays, overtime pay, leave and rest periods see paras 25–30.
118
The wages are stated as US$1447 per month. International Transport Federation ITF Standard
Collective Agreement (1 July 2012), annex 1.
119
The wages are stated as US$1709 per month. International Transport Federation, ITF Uniform
“TCC” Collective Agreement (1 January 2012).
120
The wages are stated as US$957 per month. International Transport Federation, ILO Minimum
Wage Scale (January 2012). See generally Dimitrova, Seafarers’ Rights in the Globalized Mari-
time Industry (2010), 56–59.
121
See Chap. 3, Sect. 3.3.3.3 and Chap. 5, Sect. 5.4. Leave entitlements, which have been
described by the Australian Shipowners Association as “the most vexed aspect of the terms and
conditions of employment for Australian seafarers”, would also fall into this category. However,
as no issues of international law distinct from those involved in wages are perceived to arise in
relation to this topic (as opposed to economic arguments), it is not dealt with in this chapter. See
Australian Shipowners Association, Fair Work Bill 2008 Inquiry (27 January 2009), 21.
6.2.4 Industry Reaction and the 2012 Reforms
The above outline of the Fair Work legislation demonstrates an innovative

approach to maritime employment issues, designed to bring more seafarers aboard
foreign-flagged vessels within the ambit of Australian employment law. The legis-
lation was controversial at the time of its enactment, and has remained so in the
wake of the mid-2012 package of reforms that built on the 2009 regime with six
new pieces of shipping legislation.122
6.2.4.1 Vessels Connected with Australia
Making its submission on the draft Fair Work legislation before Parliament,123 the
Australian Shipowners Association argued that124:
. . . Australian workplace relations law does not come close to workplace relations
arrangements applicable to the international shipping industry.
The application of Australian workplace relations law to foreign flagged, foreign
manned ships on international trades would impose a cost disadvantage on Australian
businesses competing with international ships operating from an international cost base
far below that of Australian domiciled businesses. This cost disadvantage would (all but)
guarantee that such Australian businesses would move these operations offshore.
The complaint that the Australian shipowners were making was that by bringing
the categories of vessels connected with Australia (as described above) within the
scope of the Fair Work legislation, Australian-based shipowners would be unable to
compete with their international counterparts who could employ workers at much
lower wages. Instead of being able to flag their vessels offshore, hire cheaper crews,
and continue operating from Australia, they would be forced to move their entire
businesses offshore. As an indication of their position, by 2009–2010 there were
only five Australian-registered vessels over 2000 deadweight tonnes in the Austra-
lian trading fleet engaged in international trade, as opposed to 37 such vessels
operated by Australian businesses that had been flagged offshore.125
122
Namely the Coastal Trading (Revitalising Australian Shipping) Act 2012; Coastal Trading
(Revitalising Australian Shipping) (Consequential Amendments and Transitional Provisions) Act
2012; Shipping Registration Amendment (Australian International Shipping Register) Act 2012;
Shipping Reform (Tax Incentives) Act 2012; Tax Laws Amendment (Shipping Reforms)
Act 2012.
123
The parts of the legislation relevant to this chapter changed very little during the legislative
process: see Parliament of the Commonwealth of Australia, Fair Work Bill 2008: Supplementary
Explanatory Memorandum (2009), 3.
124
Australian Shipowners Association, Fair Work Bill 2008 Inquiry (27 January 2009), 3; see
similarly European Commission, Communication on a common policy on manning of regular
passenger and ferry services operating in and between Member States (29 April 1998), 5.
125
Australian Government, Department of Infrastructure and Transport, Statistical Report:
Australian Sea Freight 2009–10 (September 2011), 40.
The government’s response to these concerns in 2012 was to introduce the

Australian International Shipping Register (AISR). The AISR is open to trading
vessels over 24 m in tonnage length that are Australian-owned or -operated (or on
demise charter to Australian-based operators).126 To be accepted for registration
such vessels must be predominantly engaged in international trading,127 and at least
two senior officers (including the master or chief mate) must be Australian nationals
or residents.128 Tax incentives were also introduced in an attempt to make domestic
shipping companies more profitable, including an income tax exemption and a tax
offset on wages paid to Australian resident seafarers working on international
voyages.129
As with comparable registers in other jurisdictions vessels registered under the
AISR are not subject to the Australia’s employment laws when engaged in interna-
tional trading.130 Instead the owners of AISR vessels must have in force a collective
agreement with the vessel’s seafarers’ bargaining representatives in relation to the
terms and conditions of employment. This agreement will apply during the periods
the vessel is engaged in international trade,131 while an AISR vessel that engages in
the coastal trade will be required to acquire a temporary licence in the same manner
as a foreign-flagged vessel.132 The wages of individual seafarers are determined by
the Australian government, but must not be less than the applicable ITF rate for that
class of seafarer.133 The 2012 Determination has matched wages to the ITF rate of
US$1709 per month,134 significantly less than a seafarer in the same position would
receive under the Seagoing Industry Award.
The introduction of the AISR option for Australian-based shipping operators
means that much of the impact of the Fair Work legislation was removed after just a
few years. Instead of worrying whether a foreign-flagged vessel falls within one of
the categories of vessel connected with Australia, and is thus covered by the
stringent conditions of the Fair Work legislation, an operator can simply enter its
vessels on the AISR and avoid these requirements while the vessel is engaged in
international trade.135 Nonetheless, as an example of a legal approach to regulating
international merchant shipping the Fair Work Act remains relevant.
126
Shipping Registration Act 1981, s 15B.
127
To be predominantly engaged in international trading a vessel must be trading internationally
more than the percentage of time the vessel spends engaged in the coastal or intra-state trade.
Shipping Registration Act 1981, ss 3(1) and 15F(3)(a) and 61AD.
128
Shipping Registration Act 1981, s 33A.
129
See Shipping Reform (Tax Incentives) Act 2012; Tax Laws Amendment (Shipping Reforms)
Act 2012.
130
Shipping Registration Act 1981, s 61AA(a).
131
Shipping Registration Act 1981, ss 11A and 15C(c).
132
Coastal Trading (Revitalising Australian Shipping) Act 2012, pt 4, div 2, see especially s 40(a).
133
Shipping Registration Act 1981, s 61AE. The relationship between the collective agreement
and an individual seafarer’s work agreement is set out in s 61AH.
134
Australian International Shipping Register (Minimum Wages) Determination 2012.
135
See Shipping Registration Act 1981, ss 61AA and 61AB.
6.2.4.2 Vessels Engaged in Cabotage
Industry reaction to the Fair Work legislation’s application to foreign-flagged and

-crewed vessels engaged in cabotage fell along predictable lines. Shipping interests
complained of increased costs and protectionism,136 while Australia’s powerful
maritime unions supported the entitlement of foreign seafarers to earn Australian
wages while engaged in coastal trade.137 However, both sides remained concerned
about the state of Australia’s coastal shipping industry. By 2009–2010 the
Australian-controlled trading fleet numbered only 97 vessels, half of which were
registered offshore.138 In order to keep pace with Australia’s growth as a trading
nation this fleet was supplemented by some 1,771 single voyage permits, and 1,101
continuing voyage permits (permitting multiple voyages over the course of up to
3 months) issued to foreign vessels in 2009–2010 under the previous cabotage
regime, representing almost 30 % of coastal freight.139 By comparison, in
1993–1994 these figures were 470 and 0 permits respectively.140
Some evidence of the economic impact of the Fair Work Act’s reforms in this
area was quick to appear, with one shipping company increasing its rates by AU
$600 (approximately €480) per twenty foot container,141 and members of the food
industry complaining of significant additional annual freight costs.142 During the
government review that led to the 2012 reforms the industry body Shipping
Australia Limited commented that the changes brought about by the Act have
“been the cause of a considerable increase in the costs of carrying Australian
136
Shipping Australia Limited, World may view extension of Fair Work Act to foreign seafarers as
protectionist (press release, 20 July 2009); Annabel Hepworth, “IR laws blamed for rise in costs of
shipping” (The Australian, Sydney, 11 July 2010); Shipping Australia Limited, PM can solve IR
debacle (press release, 12 July 2010); Australian Industry Group, Response to the Reforming
Australia’s Shipping Discussion Paper (7 February 2011).
137
Nautilus International, “Australian union in row over fair pay” (Telegraph, London, August
2010, at 14). See also Maritime Union of Australia, MUA Submission Concerning the Fair Work
Bill 2008 (9 January 2009), 2. Australia’s unions have long been associated with campaigns
against unfair conditions for seafarers, see for example Northrup and Rowan, The International
Transport Workers’ Federation and Flag of Convenience Shipping (1983), 89–94.
138
Australian Government, Department of Infrastructure and Transport, Statistical Report: Aus-
tralian Sea Freight 2009–10 (September 2011), 39–40. Of these vessels 32 traded only on coastal
routes, and 23 had a deadweight tonnage of under 2000 tonnes (at 53). In 1996 there were
75 Australian-registered vessels in the Australian trading fleet: Parliament of the Commonwealth
of Australia, Rebuilding Australia’s Coastal Shipping Industry: Inquiry into Coastal Shipping
Policy and Regulation (October 2008), 7.
139
Australian Government, Department of Infrastructure and Transport, Statistical Report: Aus-
tralian Sea Freight 2009–10 (September 2011), 29.
140
Eadie, “Employment of Foreign Seafarers on Australian Controlled Ships: Introduction,
Shipping Registration Options, and Domestic Legislative Considerations” (2000), 8.
141
Swire Shipping, Australian Coastal Cargo Surcharge: Fair Work Act Legislation - 1st July,
2010 (notice, 3 June 2010).
142
Australian Food and Grocery Council, Rough seas for grocery prices under new Fair Work
laws (press release, 4 August 2010).
domestic cargo and in a number of cases withdrawal of previous shipping services

available”.143
By making Australia’s cabotage regime more restrictive, the 2012 reforms
achieved the difficult task of pleasing both Australia’s shipping interests and its
maritime unions. The Australian Shipowners Association and Shipping Australia
Limited praised the increased transparency in the application process for vessels
requiring temporary licences,144 although they also expressed concerns about the
apparent inflexibility of the requirement that licences be for a minimum of five
voyages and organised well in advance, given the frequency with which one-off
shipments need to be arranged on short notice.145 Meanwhile the Maritime Union
of Australia expressed its whole-hearted support for the reforms, concluding that
the “industry is in terminal decline and without this legislation the Australian
shipping industry will wither and disappear”.146 It was left to companies with
significant interests outside of Australia like Maersk and Caltex to complain that
the new cabotage regime was unduly protectionist and would hamper Australian
interests in the long term by promoting less efficient domestic shipping services
over the well-integrated international services already in place.147
As with Chaps. 4 and 5, this section analyses the Fair Work legislation in relation to
a state’s jurisdiction over vessels in its maritime zones under UNCLOS. However,
unlike the legislation discussed in those chapters, the Fair Work legislation is not
specifically shipping-focused, and the answer to the question posed in the heading
above is to a certain extent “no”. The legislation represents a comprehensive
scheme that attempts to deal with nearly all Australian workplace relations issues,
and has been extended to shipping through both definitions that include maritime
employers/employees and provisions regarding its geographical scope.
143
Shipping Australia Limited, Shipping Australia’s Submission on the Fair Work Act Review
(January 2012), 1.
144
Australian Shipowners Association, Shipping Reform Bills 2012 (19 April 2012), paras 5.2–5.4.
145
Australian Shipowners Association, Shipping Reform Bills 2012 (19 April 2012), paras 5.5 and
5.9–5.11; Shipping Australia Limited, Enquiry into the Shipping Reform Bills (13 April 2012),
2–3.
146
Maritime Union of Australia, MUA Submission re Inquiry into 5 Shipping Reform Bills
(13 April 2012), para 4.2.
147
Maersk Line, Inquiry into the Shipping Reform Bills (13 April 2012); Caltex Australia, Caltex
Australia Limited Submission to the House of Representatives Standing Committee on Infrastruc-
ture and Communications Inquiry into the Shipping Reform Bills (20 April 2012). See also David
Osler, “Albanese’s regulatory reform divides opinion Down Under” Lloyd’s List
(12 October 2011).
6.3.1 Vessels in Port
The Fair Work legislation applies to Australian territory, including its internal
waters and ports, and the territorial sea as a matter of course.148 However, there
is no suggestion in the legislation that it will apply to every foreign vessel visiting
an Australian port. Instead, as suggested from the outlines above, the focus is on
identifying various factors that connect particular categories of vessel to Australia,
therefore justifying an exercise of jurisdiction over them. If the necessary factors
are present, then the legislation’s requirements will apply while the vessel is in port.
However, the intention of the Act is evidently not to stop at this point, but to extend
these requirements to the vessel’s operations further afield.
6.3.2 Vessels Outside of Port
As noted earlier, the Fair Work legislation is not concerned only with vessel
conditions that can be assessed during periodic port visits. Instead it extends an
entire system of workplace relations over vessels that fall within its scope. This
includes rules relating to vessel operations such as the number of hours a crew
member is permitted to work, and their periods of rest. To be effective, such
legislation must reach beyond Australia’s ports and into any part of the world in
which the vessel is operating.149
An interesting element of the Fair Work Act and Regulations as far as
international maritime law is concerned is that they represent an attempt to do
this without mentioning the concurrent jurisdiction of a foreign vessel’s flag state,
while at the same time referring to the maritime zones established under
UNCLOS. This approach causes complications when it is analysed in light of
UNCLOS, which takes a far more “flag-centric” view of jurisdiction over vessels.
The following sections examine the standard international law position on vessel
jurisdiction, as represented by UNCLOS, to illustrate the difficulties of the
Australian approach.
148
Acts Interpretation Act 1901, s 15B; see also the note to section 32 of the Fair Work Act 2009;
Parliament of the Commonwealth of Australia, Fair Work Bill 2008: Explanatory Memorandum
(2008), paras 152–154; Australian Government, Minister for Employment and Workplace
Relations, Explanatory Statement – Select Legislative Instrument No 164: Fair Work Act 2009;
Fair Work Amendment Regulations 2009 (No. 1) (2009), 3.
149
See similarly Molenaar, Oude Elferink and Prevost, Study on the Labour Market and Employ-
ment Conditions in Intra-Community Regular Maritime Transport Services Carried Out by Ships
under Member States’ or Third Countries’ Flags: Aspects of International Law (2008), 8.
6.3.2.1 The Territorial Sea
As it forms part of a state’s territory, the state may regulate the activities of vessels
within the territorial sea, but in the vast majority of cases the right of innocent
passage will mean that any enforcement action will only be taken once the vessel
has arrived in port. The Fair Work Act applies in Australia’s territorial sea and
enforcement can be approached in this manner, but the legislation also makes an
unusual claim to coastal state jurisdiction in this context. Regulation 1.15D makes
an exception “to the extent to which its application would be inconsistent with a
right of innocent passage or transit passage being exercised by a ship”,150 which is
unobjectionable. However, two categories of foreign-flagged vessel are not permit-
ted to enjoy this exception, namely majority Australian-crewed ships, and ships
licensed under Australia’s cabotage regime.151
In effect this means that, of the vessels covered by the Fair Work Act, only
foreign-flagged offshore services vessels and Australian-based ships are entitled to
rely on innocent passage. By contrast, where the exempted vessels are concerned
Australia is asserting an ability to regulate them in the territorial sea as a matter of
coastal state jurisdiction. Meanwhile the provision will have no impact on the
innocent passage rights enjoyed by vessels that do not come under the Act, such
as a Chinese-flagged and -crewed vessel operated out of China and trading between
Shanghai and Broome.
The Regulations do not go so far as to claim that the two non-exempted classes
of vessel do not enjoy the right of innocent or transit passage at all, and such a claim
would not be credible under the terms of UNCLOS. First, the rights of innocent and
transit passage apply to “ships of all states” and “all ships” respectively.152 Second,
article 18 of UNCLOS includes within its definition of “passage” movement from
one port to another port within the same state, and there is no relevant activity listed
in article 19 that would remove the “innocent” status from a normal journey of this
kind. Where international straits are concerned, the right of transit passage under
article 38 affords the coastal state even less control over foreign vessels. As a result,
the regulation appears to make the claim that as long as a vessel has a sufficiently
strong connection to Australia, for example by operating under a licence in the
country’s coastal trade, its right of innocent passage or transit passage is
outweighed by Australia’s claim to regulate the employment conditions on board.
150
The terms “innocent passage” and “transit passage” are defined with reference to UNCLOS:
151
Fair Work Regulations 2009, reg 1.15D. As originally drafted some ships on temporary cabotage
permits were permitted to enjoy innocent passage regardless in order to exclude “[f]oreign ships that
only intermittently carry passengers and cargo in Australian waters” Australian Government,
Minister for Employment and Workplace Relations, Explanatory Statement – Select Legislative
Instrument No 364: Fair Work (State Referral and Consequential and Other Amendments) Act 2009;
Fair Work Act 2009; Fair Work (Transitional Provisions and Consequential Amendments) Act 2009;
Fair Work Legislation Amendment Regulations 2009 (No. 2) (2009), 8.
152
While there is no question that the Fair Work legislation was drafted with an
eye on the international law implications of its provisions,153 there is nothing in
UNCLOS to suggest that a coastal state can exempt foreign vessels from the
application of the innocent passage regime by virtue of their close connections
with Australia. Employment conditions are not listed among the areas that coastal
states can regulate in relation to vessels enjoying innocent passage under article
21 of UNCLOS. Furthermore, even if one aspect of the Fair Work legislation did
arguably fall within the ambit of navigation safety, regulations connected with
vessel manning can only be applied if they meet the provision’s GAIRS
criteria.154 The Fair Work legislation, lacking an international basis, could not
satisfy this.
An extensive approach to the regulation of vessels engaged in cabotage can
arguably be justified by the special position afforded states in the context of their
domestic trade, and is discussed further below.155 The singling out of majority
Australian-crewed vessels from the other two categories of vessel connected with
Australia (namely offshore services vessels and Australian-based ships) is less
readily explainable. It may simply come down to the fact that the Fair Work Act
was drafted separately from its accompanying Regulations,156 and it is the latter
that deals with the three vessel categories affected by the provision on innocent
passage. Another possible explanation is that as this category of vessel pre-dates
the Fair Work legislation, and the provisions of the Navigation Act 1912 on
masters and seamen (governing matters such as crew qualifications and seafarers’
work agreements) apply to them,157 they should be approximated to vessels
operating under the Australian register regardless of their actual flag. However,
these provisions have not survived the passage of the Navigation Act 2012.
Even if either of these explanations applies, the approach to innocent passage
taken in respect of this vessel category and vessels engaged in cabotage appears
inconsistent with the provisions of UNCLOS and in this author’s view would be
completely ineffective in international law terms. Rather than claiming that inno-
cent passage does not apply to such vessels, a legislature would be better off using
port state jurisdiction (and port entry conditions in particular) to regulate them,
leaving the question of innocent passage well alone.
153
See notes to this effect in Parliament of the Commonwealth of Australia, Fair Work Bill 2008:
Explanatory Memorandum (2008), paras 152 and 167.
154
UNCLOS, art 21(2).
155
See below Sect. 6.5.
156
The Act entered into law on 9 April 2009. The innocent passage provision was introduced by
way of the Fair Work Legislation Amendment Regulations 2009 (No 2), which entered into law on
14 December 2009.
157
Navigation Act 1912, s 10(c).
6.3.2.2 The EEZ and Waters Above the Continental Shelf
The legislation’s approach becomes even more difficult to reconcile with UNCLOS
when foreign vessels operating beyond Australia’s territorial sea are taken into
account. Section 33 of the Fair Work Act extends its application to offshore services
vessels and Australian-based ships “in the exclusive economic zone or in the waters
above the continental shelf”,158 while regulation 1.15E of the Regulations does the
same for majority Australian-crewed ships, and ships licensed under the cabotage
regime.
The Act’s claim to jurisdiction over offshore services vessels, a category specif-
ically applicable to ships operating in the EEZ or the waters above continental shelf,
might at first appear to rest on a combination of port state jurisdiction (“operates to
and from an Australian port”),159 and coastal state jurisdiction based on the
Australia’s right to regulate the use of structures in the EEZ.160 However, UNCLOS
affords coastal states very limited scope to regulate vessels within the EEZ gener-
ally, and in the context of offshore platforms the most relevant aspect is the ability
to establish navigation restrictions (e.g. safety zones) around such structures.161
Other regulatory rights relate to the use of the artificial structures themselves, for
example by applying customs and fiscal laws to visiting vessels, rather than
extending any jurisdiction over the vessels themselves. Artificial structures in the
EEZ are not the equivalent of ports under international law in terms of jurisdiction,
and in most scenarios the vessels in this maritime zone enjoy the same rights as they
would on the high seas.162 The reference to the waters above the continental shelf is
of no assistance to the coastal state either, as article 78 of UNCLOS states that rights
to the continental shelf do not affect rights in the waters above it.
In the descriptions of the other vessel categories there is no reference to offshore
platforms, which makes the situation more straightforward. UNCLOS simply does
not extend coastal state jurisdiction to include authority over the employment
standards of foreign-flagged vessels within the EEZ. As a result, it would appear
that the attempt to apply the Act to ships in the EEZ or waters above the continental
shelf under section 33(1)(c) and regulation 1.15E contravenes UNCLOS. As
discussed below the cabotage concept may provide some additional rights where
it is necessary for vessels to enter the EEZ in order to carry out their coastal trading
voyages.163 Apart from this possibility it seems strange that the legislature saw fit to
address the issue of innocent passage, while addressing the far more extensive high
158
Fair Work Act 2009, s 33(1)(c) and (d). Australia’s rights in these areas are asserted under the
Seas and Submerged Lands Act 1973.
159
Fair Work Act 2009, s 33(1)(c)(ii).
160
UNCLOS, arts 56(1)(b)(i) and 60.
161
UNCLOS, art 60(4) to (7).
162
UNCLOS, art 58.
163
See below Sect. 6.5.
seas freedoms generally applicable in these maritime zones with only a note
acknowledging Australia’s international obligations.164
6.3.2.3 Beyond Australia’s Maritime Zones
Section 34 of the Fair Work Act extends its application to Australian-based ships
“outside the outer limits of the exclusive economic zone and the continental shelf”,
in other words, when such vessels are on the high seas or in the maritime zones of
other states. The legislation would apply, for example, throughout the voyages of an
Australian-based vessel flying the Panamanian flag that operates out of Darwin but
trades primarily in Asia.
Regulation 1.15F of the Fair Work Regulations also extends the application of
the Fair Work legislation beyond Australia’s maritime zones, although it does not
specifically mention vessels. This provision is complex and the extent of applica-
tion varies depending on the employer and employee in question. Two paragraphs
relate only to “an Australian employer in relation to the employer’s Australian-
based employees”,165 one paragraph extends application of specified parts of the
Act to any employer if the employee in question is Australian-based,166 and the
general protections of the Act are extended in relation to any Australian employer/
Australia-based employee.167 These situations could potentially involve employees
on a majority Australian-crewed ship.
Given the flag state’s largely exclusive jurisdiction on the high seas,168 and
general responsibility for employment matters, this attempt by Australia to regulate
the employment conditions aboard foreign-flagged vessels—even vessels with
strong connections to Australia—appears quite bold. However, the legislation’s
drafters were aware of the international law issues involved in such provisions, and
the Regulations contain a note to the effect that169:
Provisions of the Act that are specified as extending beyond the exclusive economic zone
and the continental shelf (including provisions relating to compliance and enforcement,
administration and right of entry by reason of the extension of the rest of the Act, so far as it
relates to the specified provisions) are subject to:
164
See note accompanying Fair Work Regulations, reg 1.15E.
165
Fair Work Regulations 2009, reg 1.15F(2)(a) and (5).
166
Fair Work Regulations 2009, reg 1.15F(3)(b). The parts in question relate to the core provisions
for ch 2 of the Act as well as enterprise agreements, workplace determinations, and industrial
action.
167
Fair Work Regulations 2009, reg 1.15F(4)(a). The relevant part of the Act is pt 3, div 1, which
deals with workplace rights (including access to dispute resolution proceedings), the freedom to
join a union, and workplace discrimination.
168
UNCLOS, art 92(2).
169
Fair Work Regulations 2009, reg 1.15F, note 2. See also Australian Government, Minister for
Employment and Workplace Relations, Explanatory Statement – Select Legislative Instrument No
164: Fair Work Act 2009; Fair Work Amendment Regulations 2009 (No. 1) (2009), 3–4.
(a) Australia’s international obligations relating to foreign ships; and

(b) the concurrent jurisdiction of a foreign State.
The question is whether the international law factors acknowledged in this

passage render the Australian attempt to legislate in these circumstances largely
futile, or whether port state jurisdiction or some other approach may be used to
provide a sound jurisdictional basis for such extraterritorial legislation.
6.3.3 A Carefully Framed Challenge
When viewed through the lens of coastal state jurisdiction as provided for under
UNCLOS, Australia’s assertion of jurisdiction over the employment conditions
aboard foreign-flagged vessels outside of port appears excessive. If the Convention
is so unambiguous in its allocation of responsibility for employment matters to flag
states alone, how can Australia legislate effectively without any reference to this
issue? The reality of how these provisions will be applied in practice makes this
position less clear-cut.
There is no question of a lack of good faith, abuse of rights, or discrimination
against particular flags in the case of Australia’s legislation.170 Instead it involves
the careful selection of those vessels that are already connected closely with its
jurisdiction, such as ships operating out of the country’s ports, or whose operators
use Australia as a base. The legislators will have drawn comfort from that fact this
builds on authority from the High Court of Australia approving of such an approach
in the context of earlier employment legislation.171 The legislation is then applied
as broadly as possible, while incorporating mechanisms to head off the possibility
of any international law complications. First, the notes in the Regulations regarding
Australia’s international obligations,172 which signal to Australia’s courts that the
legislation must be interpreted consistently with international law to the extent
possible on the wording of the statute. Second, the ability to make regulations
confirming that a particular person is insufficiently connected with Australia,173
allowing the government to react to any controversial examples of the legislation’s
application.
Having thus minimised the likelihood of international protest, one of the key
indicators that a state has made an excessive claim to prescriptive jurisdiction,174
170
171
Re Maritime Union of Australia (ex parte CSL Pacific Shipping Inc) (2003) 214 CLR
397 (HCA); see below Sect. 6.4.1.
172
See notes following Fair Work Regulations 2009, regs 1.15E and 1.15F.
173
Fair Work Act 2009, s 31. At the time of writing no such regulations had been made.
174
Australia’s greatest risk of criticism will arise in the enforcement context.175

Accordingly, if events occur beyond Australia’s ports in contravention of the Fair
Work Act, it is likely that any subsequent enforcement action, including the
exercise of a right of entry by an inspector,176 will be brought in port and framed
in such a way that draws as little attention as possible to any extraterritorial
elements. In this way the Fair Work legislation should be seen as primarily a set
of measures based on port state jurisdiction.
The port state element is expressed in a number of the Act’s relevant provisions.
For example, the offshore services vessel is expected to operate to and from an
Australian port,177 while the Australian-based ship, in order to meet the “based in
Australia” requirement, is realistically going to need to use an Australian port.178
The majority Australian-crewed ship has notable links with Australia, including the
majority of its crew being Australian residents and its operator being based in
Australia,179 which suggest it will most likely be operating from Australian ports on
a regular basis. Meanwhile ships engaged in cabotage will obviously be trading
between Australian ports.180 Accordingly, in the case of all categories of vessel,
multiple visits to an Australian port (and thus subjection to Australian territorial
jurisdiction) are inevitable.
The connections with Australia’s territory are thus clearly emphasised in the
legislation even when purporting to apply it extraterritorially. To curb any
criticisms of this approach the “substantial connection” to jurisdiction, discussed
below, has been built into the Act to reinforce the port state concept.
To date this approach has worked for Australia in practice. For example, there
has been no sign of operators whose foreign-flagged vessels are affected by these
provisions attempting to interest their vessels’ flag states in a formal protest on
international law grounds.181 This is reflected in the approach of the Australian
Shipowners Association during the Fair Work Act’s passage through Parliament.
175
Molenaar notes that the mere enactment of legislation is not often enough to spark protest and
claims of a breach of international law. In general it is only a state’s act of enforcing such
legislation that creates an identifiable event upon which to focus such debate. Accordingly one
must be cautious in viewing legislation as enacted as inconsistent with international law:
Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution (1998), 5–6; see also Mann,
“The Doctrine of Jurisdiction in International Law” (1964), 14; Committee on Coastal State
Jurisdiction relating to Marine Pollution, “Final Report” (2000), 450.
176
See Fair Work Act 2009, pt 3, div 4. A ship is included within the definition of “premises”
under s 12 of the Act.
177
Fair Work Act 2009, s 33(1)(c)(ii).
178
Fair Work Act 2009, ss 33(1)(d)(ii) and 34(1)(b)(ii).
179
180
Fair Work Regulations 2009, reg 1.15B; Coastal Trading (Revitalising Australian Shipping)
Act 2012, s 7.
181
However, there is a dispute before the Australian courts at the time of writing concerning the
application of the Fair Work’s minimum wage conditions to employees on an oil rig in Australia’s
EEZ, and may consequently touch on many of the issues discussed above in a domestic law
context: Fair Work Ombudsman v Pocomwell Ltd [2013] FCA 250.
The Association was more concerned with the economic impact of applying
Australia’s employment law to their members’ foreign-flagged vessels than with
the state’s ability to do so under international law.182 This impact has been
ameliorated to a large extent now that shipowners who find that Australia’s higher
employment standards are making their operations uncompetitive can choose to
register their vessels under the AISR.
The Act certainly has the potential to be enforced in a manner that would be
inconsistent with international law, but rather than a head-on challenge to the extent
of a coastal state’s jurisdiction under UNCLOS it is better to view Australia’s
approach as a carefully-framed challenge to the existing orthodoxy where jurisdic-
tion over maritime employment is concerned. In this author’s view the Fair Work
legislation can be seen as a justifiable as a combination of port state jurisdiction and
the “substantial connection” approach to jurisdiction.
6.4 Port State Jurisdiction and Employment Matters
It has been suggested by some authors that employment conditions aboard foreign
vessels may be outside the scope of a port state’s jurisdiction. For example,
discussing a set of United States Coastguard regulations which purported to regu-
late the training of crew members involved in cargo transfer operations in United
States ports, Fitch noted that183:
While the coastal state’s authority over operations conducted within its ports can hardly be
questioned, it is doubtful to what extent international law allows the laws of the port state to
affect the personnel aboard visiting foreign-registered vessels.
Arguments of this nature have generally relied on the concept that the port state
must not interfere with the “internal affairs” of a foreign vessel, which is sometimes
defined as including the employment conditions of the crew working on board.184
In 1998 the European Commission put forward a proposal similar in many ways
to the shipping-related aspects of the Fair Work Act. A proposed Regulation would
have given port states185 the authority to determine the required proportion of EU
nationals aboard all vessels carrying out regular passenger and ferry services to and
182
Australian Shipowners Association, Fair Work Bill 2008 Inquiry (27 January 2009).
183
Standards in Maritime Shipping of Hazardous Cargoes” (1979), 155.
184
See for example Patterson v Bark Eudora 190 US 169 (1903) (SC), 178; Comment, “The Effect
of United States Labor Legislation on the Flag-of-Convenience Fleet: Regulation of Shipboard
Labor Relations and Remedies Against Shoreside Picketing” (1960), 512. No explicit inclusion of
employment matters was made in the more recent decision of Spector v Norwegian Cruise Line Ltd
545 US 119 (2005) (SC). For the internal affairs concept see Chap. 2, Sect. 2.4.3.3.
185
The proposal used the term “host state”, an EU concept discussed in more detail below at Sect.
6.7.1.
6.4 Port State Jurisdiction and Employment Matters 193
from EU ports. Meanwhile a draft Directive would have applied the EU’s minimum
employment conditions to such vessels, including working hours and minimum
wage requirements.186 Commenting on the proposal on behalf of the European
Community Shipowners’ Associations, Boyle argued that the absence of any
relevant state practice signified more than just adherence to the internal affairs
concept based on international comity, but rather than it formed a rule of customary
international law187:
It seems clear from history that there is both a widespread and general practice of abstaining
from applying local law to the employment conditions of seafarers on foreign ships and a
pattern of protest from European maritime states when attempts are made to apply local
law. Although no international court has held that such regulation is contrary to interna-
tional law, the evidence considered here prima facie meets the standard for the existence of
a rule of customary international law.
The European protest referred to arose from the earlier United States case law
discussed above,188 as well as the Clay Bill, which did not enter into law.
Introduced to Congress in 1994 this Bill would have extended certain United States
employment laws, including a minimum wage requirement, to foreign-flagged
vessels engaged in regular international trade with the United States. A vessel
operator could avoid these requirements by showing that it employed a certain
percentage of flag state nationals on board, and that the vessel was beneficially
owned by flag state interests.189 Around the time of the Bill’s introduction it was
argued that the legislation would breach a customary international law prohibiting
laws that affect a foreign vessel’s internal affairs.190
As noted in Chap. 2, the position taken by this author is that there is insufficient
evidence to support a rule of customary international law that limits port state
jurisdiction in this way, as opposed to a vaguely-delimited area in which port states
often defer to flag states as a non-binding matter of international comity. This
conclusion has been argued for by scholars over many decades. For example,
commenting on the nature of the international protest following the United States’
application of its prohibition laws to vessels in its ports and territorial sea Jessup
noted that191:
186
European Commission, Communication on a common policy on manning of regular passenger
and ferry services operating in and between Member States (29 April 1998). The proposed
Regulation met with an unfavourable reception from the Economic and Social Committee and
the European Parliament and did not progress further. An amended proposed Directive was
produced two years later: European Commission, Amended Proposal for a Directive of the
European Parliament and of the Council on manning conditions for regular passenger and ferry
services operating between Member States (13 July 2000), explanatory memorandum.
187
Boyle, Proposed EU Directive on manning conditions for regular ferry services between EU
Member States: Opinion (18 October 1998), 4.
188
See above Sect. 6.1.5.
189
See Shupp, “The Clay Bill: Testing the Limits of Port State Sovereignty” (1994), 201–204.
190
Shupp, “The Clay Bill: Testing the Limits of Port State Sovereignty” (1994), 226.
191
Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 236.
It is believed that the attitude taken by foreign governments in this controversy is strong
evidence, if such is needed, of the absolute supremacy of the territorial sovereign over
foreign merchant vessels visiting its ports; the legal right of the United States to control
matters almost universally believed to pertain to the internal order of a ship, was fully
admitted. The advisability or necessity of thus exercising the right alone was questioned.
This was also the position taken by the Netherlands Institute for the Law of the
Sea (NILOS) 80 years later, largely due to the lack of opinio iuris on the matter.192
Responding to an EU request for advice on the regulation of working conditions for
non-EU seafarers, the authors found no evidence to suggest that from a port state
perspective employment standards were to be treated any differently under general
international law (including UNCLOS) from other potential areas of shipping
regulation.193 For example, as far as compliance with rules concerning vessel
conditions is concerned, such as whether a crew member is certified as having all
necessary qualifications, this can be assessed in port and deemed to have been
breached there, in just the same manner as a condition pertaining to lifesaving
equipment or hull design.194
Based on the publicly available preparatory materials for the Fair Work legisla-
tion, it appears that Australia was aware of the various international maritime law
issues that impact upon this area, but did not understand itself to be directly
confronting any rule of customary international law. In fact the High Court of
Australia had held in 2003 that the internal affairs concept “falls short of a rigid
formulation of a normative requirement of customary international law” in the
context of a maritime employment case.195
This finding came as part of a case that had a clear impact on Australia’s decision
to continue regulating under the Fair Work Act the employment conditions aboard
certain foreign-flagged vessels engaged in its coastal trade. The case concerned a
variation to the precursor to the current Seagoing Industry Award under the
previous industrial relations legislation.196 A vessel registered in the Bahamas
with a Ukrainian crew had been trading on the Australian coast under a growing
192
States’ or Third Countries’ Flags: Aspects of International Law (2008), 103–106. This report is
annexed to ECORYS, Study on the Labour Market and Employment Conditions in Intra-
Community Regular Maritime Transport Services (2009).
193
The authors did have concerns about the consistency of any future legislation with the EU’s
international treaty commitments, particularly in relation to international trade law. See Molenaar,
Oude Elferink and Prevost, Study on the Labour Market and Employment Conditions in Intra-
Community Regular Maritime Transport Services Carried Out by Ships under Member States’ or
Third Countries’ Flags: Aspects of International Law (2008), 52–83.
194
States’ or Third Countries’ Flags: Aspects of International Law (2008), 34 and 105–106.
195
397 (HCA), 417–418.
196
Maritime Industry Seagoing Award 1999; Workplace Relations Act 1996.
number of cabotage permits issued under the Navigation Act 1912 to an Australian-
based time charterer. The Maritime Union of Australia applied to have the charterer
added to the schedule of employers found in the Award, so that the crew would be
paid Australian wages, and the Australian Industrial Relations Commission held
that it had the necessary jurisdiction to determine the matter.197
Considering an application by the charterer for certiorari and prohibition, the
High Court of Australia held unanimously that in terms of its Constitution Australia
could validly regulate the conduct of persons engaged in trade with other countries
and among the states of Australia, including the issue of foreign seafarers’ wages.
The absence of the crew’s actual employer (a company incorporated in Barbados)
or additional connections between the vessel’s operations and Australia were no
barrier to this, as Australian law required no further test.198 No other international
law rules were recognised as limiting Australia’s ability to regulate such matters.199
Although the regulation of maritime employment is arguably more complex than
the regulation of areas such as safety or environmental shipping standards, there
appears to be no legal distinction under international law that would separate
employment matters out from other areas in the port state jurisdiction context.
While it is certainly still the norm that port states leave employment conditions
aboard a vessel as a matter for the flag state or other relevant jurisdiction(s) to
determine, this does not rest on any sense of legal obligation, as opposed to political
or policy-based considerations. No doubt in many cases this involves a strong desire
to leave well alone a delicate matter that the flag state is already obliged to attend to
under article 94 of UNCLOS. However, the introduction of Australia’s legislation,
and the absence of any resulting international protest,200 points away from the
conclusion reached by the supporters of the internal affairs concept.
6.4.1 Employment and Vessel Operations
In assessing the 1998 EU proposal on employment conditions aboard passenger

vessels, Boyle was of the view that this involved an exercise of port state jurisdic-
tion, but not of an extraterritorial nature.201 The authors of the NILOS report, which
197
Re The Maritime Industry Seagoing Award 1999 (2002) 118 IR 294 (Australian Industrial
Relations Commission).
198
397 (HCA), 413–415. Australia’s employment legislation was later amended to exclude ships
operating on cabotage permits from its scope (Workplace Relations Regulations 2006, regs 1.1 and
2.9), a position the Fair Work legislation reversed.
199
397 (HCA), 416–419.
200
Sarah Adams, Senior Adviser, Office of the Hon Bill Shorten MP, Minister for Employment
and Workplace Relations, correspondence with the author (27 November 2012).
201
Boyle, Proposed EU Directive on manning conditions for regular ferry services between EU
Member States: Opinion (18 October 1998), 2.
involved general advice as opposed to comments on a concrete proposal, were not

convinced that conditions relating to maritime employment could be imposed by a
port state without extraterritorial implications.202 Ringbom, commenting on the
EU’s working time requirements for foreign seafarers (which are based on an ILO
standard)203 similarly notes that the amount of time worked by a seafarer “may well
extend to a period of time when the ship was beyond the reach of the port State’s
territorial jurisdiction”.204 This author agrees with the latter two authorities’ posi-
tion in relation to the Australian legislation. Taking the regulation of working hours
for example, the public international law issues arising are the same as those
relating to other vessel operations as discussed in Chap. 4, such as the operation
of a security system on the high seas.205
Using the concepts discussed in that chapter, a port state could attempt to
introduce a port entry condition applicable to any vessel on which crew had been
required to work more than a prescribed number of hours during a week, or on
which a crew member had been unreasonably denied a prescribed number of hours
of rest. Such a clause could be drafted so that even if the vessel concerned had a
contract requiring its crew to work 12 hours a day, apart from when in Australia’s
territorial sea when they only needed to work 8 hours, the port entry condition
would be effective. It would not matter where in the world the crew were over-
worked (by Australian standards), provided the expansive approach to port entry
conditions adopted in Chap. 4 is accepted.206
However, unlike in some other areas of shipping this technique is arguably of
less value in the employment context because of the factual circumstances
surrounding maritime trade. Taking the working hours scenario, even if the vessel
entered port with contracts that the vessel’s operator admitted were subject to
Australian working conditions, the port state authorities would need to be given
accurate information on working hours by the operator. Alternatively the crew of
the foreign vessel would have to be allowed confidential access to those authorities
in order to make a complaint of being over-worked (provided they are aware that
such a law exists in the first place).207 This is the approach taken by the EU
Directive on seafarers’ working hours, which relies on port state inspections,
202
States’ or Third Countries’ Flags: Aspects of International Law (2008), 101.
203
Directive 1999/95/EC of 13 December 1999 concerning the enforcement of provisions in
respect of seafarers’ hours of work on board ships calling at Community ports; the standard
number of working hours is taken from the Seafarers’ Wages, Hours of Work and the Manning of
Ships Convention (ILO Convention 180, 22 October 1996).
204
205
206
Australia’s Fair Work Act does not take this approach, which would be more likely to be found
in specifically shipping-related legislation than in a general employment code.
207
This is a matter provided for in reg 5.2.2 of the MLC.
possibly following anonymous complaints from crew members, based on a cross-

check between the vessel’s operating records and crew time-sheets.208
Given language barriers and the grim realities of employment on board a
substandard vessel, this kind of enforcement action appears somewhat fraught.
Even if details were available that suggest a crew had been over-worked, a vessel
operator could argue that various unexpected conditions made this necessary for the
well-being of the ship,209 and it would become increasingly difficult for the port
state to enforce its laws without it beginning to look as if it was in fact trying to
regulate the vessel’s operations on the high seas. This points to the regulation of
working hours being something best assessed on a regular, ongoing basis, which in
turn requires some consistency in the employment law applicable to the vessel and
regular visits to that state’s ports. Rules established by way of port state jurisdiction
based on infrequent visits would be difficult to enforce effectively.210
This is not to suggest that port states should abandon any efforts to interest
themselves in the maltreatment of seafarers during voyages. However, it must be
acknowledged that this is a particularly difficult area to police effectively given the
jurisdictional complications facing port states where vessels’ extraterritorial
activities are concerned, combined with the “human elements” of cultural and
language barriers, and the vulnerability of poorly-treated seafarers. It may be
possible for port states to act more indirectly, supporting seafarers in distressed
circumstances and allowing them easy access to a country’s civil courts in order to
address their disputes through private law channels,211 thus avoiding the
complications of regulating vessel operations in an extraterritorial manner.
6.4.2 Employment and Vessel Administration
Employment-related matters concerning vessel administration, such as the crew’s

wages and leave entitlements, can be difficult to regulate as a port state for the same
reasons given above concerning working hours.212 First there is the challenge of
giving such rules a sound basis in international law. For example, where foreign-
flagged ships engaged in the coastal trade on a short-term basis are concerned
208
Directive 1999/95/EC of 13 December 1999 concerning the enforcement of provisions in
respect of seafarers’ hours of work on board ships calling at Community ports, arts 3–4.
209
As for example the Seagoing Industry Award allows in situations where working hours are
extended as a matter of necessity: Seagoing Industry Award 2010, para 17.2; see similarly
Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working
time of seafarers concluded by the European Community Shipowners’ Association (ECSA) and
the Federation of Transport Workers’ Unions in the European Union (FST), annex, cl 7.
210
See similarly Ringbom, The EU Maritime Safety Policy and International Law (2008), 357.
211
See generally Gaskell, “Private Law Regimes Applicable to Seafarers” (2005).
212
See also Chap. 5, Sect. 5.4.2.1.
Australia’s Fair Work legislation prescribes only weekly pay rates.213 It would be
far more difficult for Australia to claim that any vessel operator whose vessel makes
a single port call in Australia must subsequently increase its crew’s wages for the
next 12 months. Such a move would no doubt lead to protest from flag states,
spurred on by vessel operators, arguing that the move was disproportionate to any
trade protection-related aims and that Australia lacked the jurisdiction to regulate
foreign contracts with so little connection to its shores. Realistically, some regular
contact with the port state would be necessary in order to justify such a long-term
requirement, and ensure compliance with it.
Unlike rules relating to vessel operations, which necessarily concern the vessel’s
activities at sea, matters of vessel administration are a step removed from the actual
vessel and its conduct.214 Wages will be agreed to under a contract that has most
likely been made outside of Australia, and will likely be paid into a foreign bank
account. Although the crew are earning their wages by working on the vessel, most
aspects of this facet of shipping occur in other jurisdictions, far from the port state.
Parallels can be drawn with the insurance arrangements to meet the EU’s compul-
sory insurance requirement discussed in Chap. 5.
Unsurprisingly in the employment context this often leads to rules applicable to
seafarers by virtue of their nationality or residence,215 without reference to mari-
time zones or flag state jurisdiction, rather than attempts to regulate foreign-flagged
vessels visiting port. Alternatively a state might focus on the presence of
shipowners within its jurisdiction, which is reflected to some extent in the Fair
Work Act. For example a key factor of the Australian-based ship category is that the
vessel is “chartered or operated by an Australian employer”, the latter including an
Australian company.216 Similarly the majority Australian-crewed ship is partly
defined by its having an operator resident, based or incorporated in Australia.217
A further approach, promoted by the MLC, is a focus on the important role of
“labour-supplying” states in protecting the rights of their nationals.218 However, even
if such a state does have a role in regulating its seafarers’ working conditions, for
example by having its state-licensed crewing agencies insist that the state’s employ-
ment law is applicable to those seafarers’ contracts, this does not mean that the labour-
supplying state will always play an effective role. The seafarers in question might
remain far from its courts, without any realistic prospect of making a claim against the
shipowner when they are ill-treated or abandoned, and even if they do manage to make
a claim there may be no suitable defendant within the court’s jurisdictional reach.219
213
Seagoing Industry Award 2010, para 24.
214
215
Regular Maritime Transport Services (2009), 108 and 113.
216
Fair Work Act 2009, ss 33(1)(d), 34(1)(b) and 35(1).
217
218
MLC, reg 5.3.
219
See Couper, “Historical Perspectives on Seafarers and the Law” (2005) 29–30.
6.5 Port State Jurisdiction and Cabotage Restrictions 199
On the whole the vessel administration aspects of the Fair Work legislation, such
as the minimum wage and leave provisions, deal with operators that may have
flagged their vessels offshore, but remain closely connected with Australia. If a port
state was to try and regulate the crew wages or other employment-related adminis-
trative matters aboard visiting foreign vessels with no such connection, merely a
short annual visit or even a visit every few months, in this author’s view they would
be unable to justify the measure under international law. Even if a port entry
condition or related method was used, the ongoing nature of factors such as wage
payments and the importance of employment-related costs to the shipping
operation’s competitiveness would fast render such a law disproportionate. The
connection between the vessel’s brief submission to the port state’s territorial
jurisdiction and the need to alter key aspects of the manner in which its crew was
employed would simply be too tenuous and, furthermore, unenforceable in practice.
This can be compared with a more readily justifiable rule relating to a crew’s
working hours, which would have an impact on how the vessel was operated within
the port state’s maritime zones, and arguably impact on the safety of navigation in
those zones by ensuring that over-worked seafarers do not cause major environ-
mental disasters or harm other vessels.
6.5 Port State Jurisdiction and Cabotage Restrictions
The trade-related concept of maritime cabotage, as outlined above,220 encompasses

those laws regulating the carriage of passengers and cargo between the ports of a
single country. These laws stem from the long-recognised right of a coastal state to
“reserver pour ses nationaux certaines branches de commerce, d’industrie ou de
navigation”.221 In the context of international agreements cabotage is generally
raised as an exception to rules prohibiting discrimination against particular flags.
For example, the Convention on the IMO provides that one of the organisation’s
core purposes is to encourage the removal of discriminatory practices where
international shipping is concerned, but goes on to state that222:
. . . assistance and encouragement given by a Government for the development of its
national shipping and for purposes of security does not in itself constitute discrimination,
provided that such assistance and encouragement is not based on measures designed to
restrict the freedom of shipping of all flags to take part in international trade
220
See above Sects. 6.1.1, 6.2.2.2 and 6.2.4.2.
221
Institut de Droit International, “Règlement sur le Régime Légal des Navires et de leurs
Équipages dans les Ports Étrangers” (1898), art 5; see similarly Institut de Droit International,
“Règlement sur le Régime des Navires de Mer et de leurs Équipages dans les Ports Étrangers en
Temps de Paix” (1928), art 7(2).
222
Convention on the International Maritime Organization (6 March 1948, as amended), art 1(b).
In a similar vein the retention or otherwise of parties’ cabotage rights are often
dealt with in treaties of commerce, friendship and navigation,223 while the EU has
removed the potential for discrimination between Member States by opening most
maritime cabotage across the EU to the vessels of all Member States.224 However,
there is no multilateral treaty determining what regulations are or are not permitted
within the scope of cabotage restrictions. Maritime cabotage is not limited by the
General Agreement on Trade in Services (which covers only international
shipping)225 and UNCLOS, not being a treaty concerned with trading matters, is
understandably silent on the matter.
As a result the relationship between the regulation of visiting foreign vessels by a
port state and that port state’s cabotage-related restrictions on maritime trade
remains a matter for ongoing discussion and analysis. At a basic level there is no
question that a state may decide that only vessels operating under its own flag are
permitted to engage in its coastal trade or, like Australia, it may decide to admit a
certain number of foreign-flagged vessels to supplement its national fleet. The
question then becomes to what extent may the port state establish conditions with
which those foreign vessels must comply? The legal basis for cabotage restrictions
stems from a state’s territorial jurisdiction, given that the trading practices involved
concern only its own territory,226 so in this sense the concept ties in neatly with port
state jurisdiction’s reliance on a foreign vessel’s presence in port. The regulation of
vessel conditions will therefore give rise to no significant issues, given the essen-
tially unfettered ability of port states to regulate such matters when visiting foreign
vessels are involved solely in international trade.227
More interesting is the potential interaction between cabotage restrictions and
the regulation of vessel operations when vessels are travelling between the state’s
ports. To carry out its voyage a vessel will have to traverse the internal waters,
territorial sea, and possibly the EEZ of the state in question. It may even have to
enter the high seas, or pass through the maritime zones of other states (as in a
shipment from Los Angeles to Baltimore, for example). This raises the issue of
whether a state’s ability to regulate cabotage can justify a claim to extraterritorial
jurisdiction more easily than is possible where foreign vessels are engaged in
international trade. As the NILOS report notes228:
223
224
Regulation No 3577/92 of 7 December 1992 applying the principle of freedom to provide
services to maritime transport within Member States (maritime cabotage); see Farantouris, Euro-
pean Integration and Maritime Transport (2003), 264 and following.
225
General Agreement on Trade in Services, arts I(2)(a) and (b) and XXVIII(f)(i); see Giemulla,
“Cabotage” (2008), paras 12 and 15.
226
Lane, “Cabotage” (1985), 61.
227
228
States’ or Third Countries’ Flags: Aspects of International Law (2008), 104–105 (reference
omitted).
6.5 Port State Jurisdiction and Cabotage Restrictions 201
A port State’s wide discretion over vessels involved in maritime cabotage is widely
recognized in general international law. This discretion seems to be based on the special
interests of the port (or host) State and the circumstance that the extra-territorial effects are
limited and do not affect the uniformity in the regulation of international maritime
transport.
In other words the regulation vessel operations, such as the working hours of the
crew, throughout a voyage where a foreign-flagged vessel is engaged in cabotage is
far more likely to be accepted by the international community than in other
contexts. Here the port state’s position is even stronger than when levelling the
same argument for general conditions on port entry.229 Given that the port state can
legitimately prevent all foreign vessels from engaging in its coastal trade, then how
can international law limit its ability to allow foreign vessels to compete in its
domestic market, even under tight restrictions? The concepts of cabotage and port
entry conditions can therefore be seen as related, the former justifying a more
expansive approach to the latter.
Australia was evidently aware of this when determining the scope of the Fair
Work Act. Up until the 2012 reforms Australia’s position on cabotage was per-
ceived to be more relaxed than many states’ policies, as it made no reference to flag
in its licensing procedure, provided the vessel in question would operate at Austra-
lian wage levels.230 The Explanatory Statement accompanying the Fair Work
Legislation Amendment Regulations 2009 (No. 2), which introduced the provision
limiting the right of innocent and transit passage in respect of vessels engaged in its
coastal trade,231 noted that232:
This limitation on the right of innocent passage or transit passage is consistent with
Australia’s international obligations. In international law, coastal states have the exclusive
right to transport goods and passengers from one part of the coastal state to another
(cabotage). A coastal state may reserve this cabotage exclusively for its own ships by
denying foreign-flagged ships the right to unload or collect cargo. Equally, a coastal state
may impose conditions on foreign-flagged ships which are given permission under domes-
tic laws (e.g. a licence or permit issued under the Navigation Act 1912) to engage in
cabotage.
Even now that Australia’s cabotage regime does give preference to the Austra-
lian flag, and permits foreign-flagged vessels (or those registered on the AISR) to
take part on a more restrictive basis than before,233 such vessels are still required to
229
230
See Navigation Act 1912, pt VI; Navigation (Coasting Trade) Regulations 2007.
231
Fair Work Regulations 2009, reg 1.15D.
232
Australian Government, Minister for Employment and Workplace Relations, Explanatory
Statement – Select Legislative Instrument No 364: Fair Work (State Referral and Consequential
and Other Amendments) Act 2009; Fair Work Act 2009; Fair Work (Transitional Provisions and
Consequential Amendments) Act 2009; Fair Work Legislation Amendment Regulations 2009
(No. 2) (2009), 7.
233
Coastal Trading (Revitalising Australian Shipping) Act 2012, ss 13 and 21(a); see also above
Sect. 6.2.2.2.
adopt working hours practices and wage rates above the international norm during
the period that such vessels are engaged in the coastal trade.234
This claim, that a state’s rights in relation to cabotage can override the right of
innocent or transit passage in relation to employment conditions on a vessel, by
allowing the state to regulate such matters during the vessel’s entire voyage does
not appear in article 21 or other relevant provisions of UNCLOS. However, as
discussed in Chap. 4, it is possible for states to make broader claims to jurisdiction
using the concept of port state jurisdiction than the Convention on its face allows.
When these arguments can be combined with the concept of cabotage the state’s
position is even stronger. It is likely that Australia is giving voice to a perceived rule
of customary international law, whereby a port state regulating cabotage can
essentially dictate all matters of a vessel’s conditions, operations between ports
and administration while it is exercising this privilege. In the context of the Fair
Work Act this would no doubt be relied upon by Australia in relation to any vessels
operating on a temporary licence under the 2012 cabotage regime.
6.6 Private International Law Considerations
Discussing a definition of international labour law Liukkunen notes that235:

. . . on the one hand there exists a set of employment relationship norms that have been
created between states at the level of public international law, and on the other hand there
are norms on choice of law applicable to employment contracts in each state.
As this suggests, the contractual element of employment law means that this
discussion of maritime employment regulations would be incomplete without a
consideration of the impact of private international law. States may disagree
between themselves as to whether one of their number has overstepped the mark
from a public international law perspective, but from the perspective of individual
seafarers and ship operators it is more important to know the situations in which a
state’s law will be applied to the employment relationship in the first place, and if so
to what extent.
A state like Australia might enact a law such as the Fair Work Act with
employment conditions its courts must apply in favour of certain seafarers who
come before them. However, this does not mean that other courts in other states will
be in a position to apply these Australian rules to those same seafarers in accordance
with their conflict of laws rules. For example, in situations where a seafarer’s
employment contract includes a choice of law clause selecting a law other than
that of Australia then a third party state’s conflict of laws rules might require the
application of the chosen law.
234
See above Sect. 6.2.2.2.
235
Liukkunen, The Role of Mandatory Rules in International Labour Law (2004), 3–4.
6.6 Private International Law Considerations 203
Australian law deals with such issues through conflict of laws rules developed by
the common law, under which the proper law of a contract is determined by
weighing up a variety of connecting factors, notably any choice of law clause.236
However, given the context of this discussion it is more useful to consider what
might occur if a seafarer relying on the Australian Fair Work legislation appeared in
an EU court. This involves an analysis of the EU’s Rome I Regulation,237 which
deals with the law applicable to contractual obligations, and provides a comprehen-
sive set of rules determining the approach of a large group of states.
The first scenario examined here is where Seafarer X’s employment contract is
explicitly stated as being governed by a system other than Australian law, namely
the law of the Philippines. Seafarer X’s employment activities then come within the
scope of the Fair Work legislation during a period in which his vessel is engaged in
the cabotage trade along the Australian coast. During this time Seafarer X is not
paid at Australian wage levels, and takes proceedings for the recovery of the unpaid
balance of wages in a court outside of Australia that will apply Rome I.238
In the second scenario Seafarer Y, whose contract also contains a choice of law
clause selecting the law of the Philippines, regularly works more the maximum
working hours provided for by the Fair Work legislation. Although Seafarer Y is
serving on a Panamanian-flagged vessel on a series international trade routes, the
company that controls the vessel is owned and operated from Australia, and the
vessel is based out of Australia, thus meeting the requirements for an Australian-
based ship under the Fair Work legislation. During a stopover in Europe Seafarer Y
takes action regarding this over-work against his employer in a court that will apply
Rome I. The issue in each scenario is whether the court will be bound to accept the
parties’ choice of law, or whether the more favourable Australian law will be
applied (and if so to what extent).239
6.6.1 Application of Rome I to Seafarers’ Employment

Conditions
Although the Rome I Regulation generally gives precedence to the parties’ choice
of law,240 it also contains more specific rules favouring employees on the basis that
236
See Davies, Bell and Brereton, Nygh’s Conflict of Laws in Australia (2010), 387–406. See for
example in the shipping context The “Rainbow Joy” [2005] 3 SLR 719 (CA).
237
Regulation No 593/2008 of 17 June 2008 on the law applicable to contractual obligations
(Rome I).
238
The employer may of course have included a choice of jurisdiction clause in the contract in an
attempt to force any disputes before a more employer-friendly forum, but this issue is beyond the
scope of this discussion.
239
The applicable law under Rome I need not be that of an EU Member State: art 2.
240
Rome I, art 3(1) and recital 11.
they are usually parties in a weaker position than their employers.241 In this vein
article 8 provides that242:
1. An individual employment contract shall be governed by the law chosen by the parties
in accordance with Article 3. Such a choice of law may not, however, have the result of
depriving the employee of the protection afforded to him by provisions that cannot be
derogated from by agreement under the law that, in the absence of choice, would have
been applicable pursuant to paragraphs 2, 3 and 4 of this article.
2. To the extent that the law applicable to the individual employment contract has not been
chosen by the parties, the contract shall be governed by the law of the country in which
or, failing that, from which the employee habitually carries out his work in performance
of the contract. The country where the work is habitually carried out shall not be deemed
to have changed if he is temporarily employed in another country.
3. Where the law applicable cannot be determined pursuant to paragraph 2, the contract
shall be governed by the law of the country where the place of business through which
the employee was engaged is situated.
4. Where it appears from the circumstances as a whole that the contract is more closely
connected with a country other than that indicated in paragraphs 2 or 3, the law of that
other country shall apply.
There can be no doubt that Australia’s rules on seafarers’ wages and working
hours as set out in the Fair Work legislation represent minimum protections that
cannot be derogated from under Australian law.243 The question is whether a court
applying article 8 of Rome I would ever require that Australian law govern the
contract of an employee in Seafarer X or Y’s position notwithstanding the choice of
law clauses in their respective contracts.
Despite recommendations to the contrary,244 Rome I contains no specific provi-
sion for seafarers’ employment contracts. Wurmnest, discussing the application of
the article 8 rules to seafarers’ contracts where no choice of law has been made, has
pointed out a number of difficulties that arise from the generic set of employment-
related rules.245 Taking article 8(2), in many cases seafarers on international routes
cannot easily be described as habitually working “in” or “from” one country.246
They will pass through many jurisdictions, and any periods of time in Australia’s
maritime zones will most likely be but small parts of much longer voyages. This is
certainly the case in Seafarer X’s scenario. However, Seafarer Y’s position may fall
within the “working from” aspect of the provision. Two recent ECJ decisions have
241
Rome I, recital 23.
242
See also Rome I, recitals 15 and 35.
243
The assessment must be made in light of Australian standards, rather than those of the forum:
Plender and Wilderspin, The European Private International Law of Obligations (2009), 312. See
also Philip, “Mandatory Rules, Public Law (Political Rules) and Choice of Law in the EEC
Convention on the Law Applicable to Contractual Obligations” (1982), 83.
244
Basedow and Wurmnest (eds) “Comments on the European Commission’s Proposal for a
Regulation of the European Parliament and the Council on the law applicable to contractual
obligations (Rome I)” (2007), 294–297.
245
See also Belohlavek, Rome Convention / Rome I Regulation Commentary (2010) 1383–1384.
246
Wurmnest, “Maritime Employment Contracts in the Conflict of Laws” (2012), 126–133; see also
Plender and Wilderspin, The European Private International Law of Obligations (2009), 316.
assessed the position of transport workers in this respect, and although both were
decided under the earlier Rome Convention, both have relevance under Rome I.247
In the first decision, Koelzsch, a Germany-based truck driver’s employment
contract contained a choice of law clause selecting the law of Luxembourg. His
employer was a Luxembourg-based subsidiary of a Danish parent company, and his
work involved delivering flowers across several European countries. When his
employment was terminated, Mr Koelzsch sued on the basis that German law
should govern the relevant provisions of his contract.
The ECJ held that the factors relevant in determining what constituted “working
in or from” a country depended on the specific job in question, and that in the
context of the international transport sector, the factors relevant to determining the
country in or from which “the employee performs the greater part of his or her
obligations towards his employer” include248:
. . . the place from which the employee carries out his transport tasks, receives instructions
concerning his tasks and organises his work, and the place where his work tools are
situated. It must also determine the places where the transport is principally carried out,
where the goods are unloaded and the place to which the employee returns after completion
of his tasks.
This issue was revisited in the maritime context later the same year in
Voogsgeerd v Navimer SA. Mr Voogsgeerd had been employed on two vessels in
the North Sea operating from a base in Antwerp. His contract was with the
Luxembourg subsidiary of a Belgian company and like the previous claimant’s
contained a choice of law clause pointing to the law of Luxembourg. Mr
Voogsgeerd complained against his dismissal and argued Belgian law should
govern the relevant provisions of his contract. However, due to the manner in
which the referring court had framed its reference the ECJ did not add any further,
maritime-specific, comments to the factors identified in Koelzsch.249
Returning to Seafarer Y’s position, it may well be that by virtue of returning to
Australia on a frequent basis to receive instructions and commence voyages a court
would hold that he “worked from” Australia. However, it is easy to envisage these
factors working against a seafarer who might finish voyages in various different
ports of the world and be flown back to the Philippines for a rest period before being
flown back to join a different vessel. The combination of the employer’s operations
and instructions and the employee’s location may not always coincide in the
manner of the Koelzsch and Voogsgeerd scenarios.250 In such cases a court might
be tempted to find, somewhat artificially, that an employee was working “from” a
country that he or she rarely set foot in on the basis of the employer’s connections
247
Koelzsch v Luxembourg [2011] ECJ Case C-29/10, para 46.
248
Koelzsch v Luxembourg [2011] ECJ Case C-29/10, paras 48–50. See also Koelzsch v
Luxembourg (Opinion of Advocate-General Trstenjak) [2011] ECJ Case C-29/10, paras 95–97.
249
Voogsgeerd v Navimer SA [2011] ECJ Case C-384/10, paras 36–41.
250
See for example the arrangements of a UK-based pilot who was nonetheless managed from
Hong Kong: Serco Ltd v Lawson [2006] UKHL 3, para 21.
with that jurisdiction. A better solution would be to fall back on article 8(4), but first
paragraph (3) must be considered.
It has been noted that the “law of the country where the place of business through
which the employee was engaged is situated” as provided for in article 8(3) may
operate in a “capricious or even arbitrary” manner,251 and not necessarily favour the
employee.252 In Seafarer X and Y’s cases this is most likely to be law of the
Philippines where a crewing agency will most likely have been contracted to
provide crew for a vessel located on the other side of the world. In this scenario
the ECJ’s decision in Voogsgeerd, although not considering the role of an employ-
ment agency, suggests that when one business acts for another in engaging an
employee then the law of the country in which that agent is based will apply.253 In
the shipping context this rule is most unlikely to point to the law of Australia or any
other developed nation with high labour standards. In this author’s view a court
should be prepared to move past article 8(3) in most maritime cases and look
instead to the general provision of 8(4).254
In relation to article 8(4), the country most “closely connected” with the con-
tract, Seafarer X’s outcome is likely to be different from Seafarer Y’s. Seafarer Y’s
situation involves a number of significant connecting factors pointing to Australia,
and indeed the relevant provisions of the Fair Work legislation are intentionally
structured to apply to seafarers whose jobs are, at their core, primarily connected
with Australia. In that case the application of article 8(1) and (4) should operate to
provide Seafarer Y with the benefits of Australian employment law, even though his
vessel spends only a limited amount of time in Australia’s maritime zones.255
Seafarer X’s employment contract on the other hand is not likely to be signifi-
cantly connected to Australia or any other country that his vessel merely visits
during a long voyage. This rule invokes a wide range of factors such as the parties’
nationalities, the language and currency used in the contract, the employer’s place
of business, and the use of concepts from a specific legal system.256 If a person in
Seafarer X’s position wants to argue that a choice of law clause should be
overridden on this basis they would need to focus on the factors surrounding their
employer’s operations.
251
Voogsgeerd v Navimer SA (Opinion of Advocate-General Trstenjak) [2011] ECJ Case C-384/
10, para 71; see also Plender and Wilderspin, The European Private International Law of
Obligations (2009), 319.
252
Wurmnest, “Maritime Employment Contracts in the Conflict of Laws” (2012), 133–135.
253
Voogsgeerd v Navimer SA [2011] ECJ Case C-384/10, paras 59–65.
254
See also on the relationship between article 8(3) and (4): Voosgeerd v Navimer SA
(AG opinion), para 73.
255
However, the use of the AISR would override this by withdrawing from the seafarer the
conditions extended by the Fair Work legislation.
256
Voogsgeerd v Navimer SA (Opinion of Advocate-General Trstenjak) [2011] ECJ Case C-384/
10, para 74; see also Plender and Wilderspin, The European Private International Law of
Obligations (2009), 320–321; Collins (ed), Dicey, Morris and Collins on the Conflict of Laws
(2012), 2036.
6.6.2 Overriding Mandatory Provisions
In terms of enjoying the benefits of Australia’s Fair Work legislation, Seafarer X

would be best advised to argue that the relevant sections constitute “overriding
mandatory provisions”.257 Despite the precedence given to the parties’ choice of
law, Rome I does not entirely shut the door on the application of aspects of a third
state’s law to a contract in certain circumstances. Article 9 on overriding mandatory
provisions, a concept that must be construed more restrictively than that of
“provisions which cannot be derogated from by agreement”,258 relevantly provides
that:
1. Overriding mandatory provisions are provisions the respect for which is regarded as
crucial by a country for safeguarding its public interests, such as its political, social or
economic organisation, to such an extent that they are applicable to any situation falling
within their scope, irrespective of the law otherwise applicable to the contract under this
Regulation.
[. . .]
3. Effect may be given to the overriding mandatory provisions of the law of the country
where the obligations arising out of the contract have to be or have been performed, in so far
as those overriding mandatory provisions render the performance of the contract unlawful.
In considering whether to give effect to those provisions, regard shall be had to their nature
and purpose and to the consequences of their application or non-application.
States have varied in their approach to the rules on overriding mandatory

provisions, a form of which also existed in the rules preceding Rome I,259 but
employment is an area in which it is accepted that this concept may apply.260
Germany has taken a comparatively narrow approach, extending this special
status to some but not all employment laws.261 Provisions that have the principal
purpose of protecting the public interest, for example by restricting the actions of
employers, will be treated as mandatory, while those that merely balance the private
interests of contracting parties will not. Plender and Winderspin give the examples
of rules relating to the protection of disabled employees and the conferral of
maternity rights being held by the German courts as falling within the scope of
257
For background to this complex and controversial area of law see Jackson, “Mandatory Rules
and Rules of ‘Ordre Public’” (1982); Philip, “Mandatory Rules, Public Law (Political Rules) and
Choice of Law in the EEC Convention on the Law Applicable to Contractual Obligations” (1982);
Chong, “The Public Policy and Mandatory Rules of Third Countries in International Contracts”
(2006); Dickinson, “Third-Country Mandatory Rules in the Law Applicable to Contractual
Obligations: So Long, Farewell, Auf Wiedersehen, Adieu?” (2007).
258
Rome I, recital 37.
259
1980 Rome Convention on the law applicable to contractual obligations, art 7.
260
See especially Liukkunen, The Role of Mandatory Rules in International Labour Law (2004);
see also Morse, “Contracts of Employment and the EEC Contractual Obligations Convention”
(1982), 156; Chong, “The Public Policy and Mandatory Rules of Third Countries in International
Contracts” (2006), 50–51; see also Plender and Wilderspin, The European Private International
Law of Obligations (2009), 339–340.
261
mandatory provisions, whereas the opposite conclusion was reached in relation to

rules on the working hours of temporary employees, employee rights in the event of
a business transfer, and unfair dismissal entitlements.262
By contrast France and Belgium have taken a wider view of the overriding
mandatory provisions concept.263 French courts in particular have determined that
any employment law that protects an employee as the weaker party to the contract
should be internationally mandatory.264 The ECJ has yet to provide an authoritative
comment on the interpretation of article 9, and the article’s wording provides no
real assistance in terms of how to balance the various factors listed.265 Liukkunen’s
view, having comprehensively studied this area, is that it is impossible to settle
upon precise criteria for the types of employment law that will be classified as
overriding mandatory provisions.266 In other words, only the gradual accumulation
of case law and expert commentary will provide clear guidelines on this issue.
In this author’s view the Australian employment laws on wages and working hours
discussed in this chapter would satisfy the requirements for overriding mandatory
provisions.267 They have been framed by the Australian legislature for the purpose of
regulating seafarers’ employment conditions regardless of seafarer nationality or
vessel flag, and the nature of the provisions is such that they can apply regardless
of whether the relevant contracts are governed by Australian law or that of another
state. The requirement is precise and an employer can easily determine the number of
days worked and apply the increased wage rate accordingly.268 The statutory back-
ground demonstrates that Australia would wish these provisions to be applied by
foreign courts not just because they provide protections for the seafarers concerned,
but also because they have been designed to regulate Australia’s own economy by
promoting the position of domestic shipping industry vis-à-vis foreign competitors.
The working hours provisions have a strong public interest element,269 in the
sense that mistakes made by over-worked seafarers can pose a significant safety and
environmental risk to Australian interests. The provision thus involves the
262
Plender and Wilderspin, The European Private International Law of Obligations (2009),
340–341.
263
264
265
Collins (ed), Dicey, Morris and Collins on the Conflict of Laws (2012), 1836–1837.
266
Liukkunen, The Role of Mandatory Rules in International Labour Law (2004), 141.
267
Wurmnest uses minimum wage requirements as an example of an overriding mandatory
provision in the context of EU law on the temporary posting of workers: Wurmnest, “Maritime
Employment Contracts in the Conflict of Laws” (2012), 119–120. Directive 96/71/EC of
16 December 1996 concerning the posting of workers in the framework of the provision of
services; Similarly the editors of Dicey, Morris and Collins on the Conflict of Laws (2012) suggest
that the National Minimum Wage Act 1998 (UK) arguably contains mandatory overriding
provisions (at 2053–2054); compare their discussion of the Employment Rights Act 1996
(at 2045–2046).
268
Criminal Proceedings against Jean-Claude Arblade [1999] ECJ Case C-369/96, para 41 and
following.
269
See Liukkunen, The Role of Mandatory Rules in International Labour Law (2004), 130–131.
safeguarding of both the social and economic interests of Australia. The same could
not be said for all of the Fair Work legislation. Of the provisions that deal with
matters relevant to employment contracts, some are purely administrative,270 and
others will not be central enough to the legislation’s aims. For example, of the ten
National Employment Standards provided for in the Fair Work legislation, it is
unlikely that an employee could argue that access to the “Fair Work Information
Statement” was significant enough to meet the required standard.
In Seafarer X’s case he should be able to rely on the Fair Work legislation to
recover the balance of higher wages owed for the period in which his vessel traded
on the Australian coast. The application of the Fair Work legislation renders
unlawful the employer’s performance of his employment contract during the
cabotage period in Australia, as the wages paid did not meet the statutory minimum.
Further, “the consequences of [the minimum wage provisions’] application are not
overly complicated, merely resulting in a back-payment of wages as opposed to the
termination of employment altogether or some other drastic step. Seafarer X’s
contract would otherwise still be governed by the law of the Philippines for matters
such as his term of service, which vessel(s) he would serve on, his position on the
vessel and so forth. However, it is impossible to be too certain in this conclusion
because the application of a third state’s overriding mandatory rules is discretion-
ary: article 9(3) only states that “effect may be given” to them.
6.6.3 Ordre Public
A possible response to Seafarer X’s attempt to have the Fair Work legislation apply
in his favour on the basis that the relevant sections are overriding mandatory
provisions is that the forum would reject the application of those rules in accor-
dance with article 21 of Rome I:
The application of a provision of the law of any country specified by this Regulation may be
refused only if such application is manifestly incompatible with the public policy (ordre
public) of the forum.
This concept is intended to apply only in exceptional circumstances, and in the

field of employment law would cover extreme matters such as child labour or
slavery.271 Nonetheless, although it is unthinkable that a state’s courts would decide
that the application of a minimum wage requirement offends against its ordre
public,272 a state may decline to apply foreign law when doing so would offend
270
See Criminal Proceedings against Jean-Claude Arblade [1999] ECJ Case C-369/96, paras
36–37.
271
Liukkunen, The Role of Mandatory Rules in International Labour Law (2004), 26.
272
See Jackson, “Mandatory Rules and Rules of ‘Ordre Public’” (1982); Philip, “Mandatory
Rules, Public Law (Political Rules) and Choice of Law in the EEC Convention on the Law
Applicable to Contractual Obligations” (1982), 69–70; Plender and Wilderspin, The European
Private International Law of Obligations (2009), 362–366.
against a principle of public international law.273 Accordingly it is possible that a

state could argue that legislation seen to breach public international law limitations
on the regulation of foreign-flagged vessels must not be applied. An example of this
might be a state objecting to the application of foreign law to the employment
conditions of seafarers serving on vessels operating under that country’s flag, on the
basis that it has exclusive jurisdiction while the vessel is on the high seas.
This possibility, and the rest of the discussion on private international law above,
serves as a reminder that, where seafarers’ employment contracts are concerned, public
international law should not be viewed in isolation. Legislators, third party states, and
affected industry players have an interest in the effectiveness of shipping regulations like
those in Fair Work legislation in both contexts. This is reinforced further in the discussion
of the substantial connection approach to jurisdiction below, where the private interna-
tional law approach intersects with public international law concepts of jurisdiction.
6.7 The Substantial Connection Approach to Jurisdiction
Basing an extended claim to jurisdiction over the employment standards aboard

foreign-flagged vessels may answer for Australia in the context of cabotage, but
what of the categories of vessel connected with Australia that are not necessarily
engaged in such trade? These may include an Australian-based ship, for example a
Panamanian-flagged vessel with an Indian crew operating on international trade
routes owned and controlled by an Australian shipping company. Similarly a
Norwegian-flagged offshore services vessel might be operating for a 12 month
period between an Australian port and a drilling rig in Australia’s EEZ. Both
categories of vessel would be expected to comply with the Fair Work legislation,
in the first example wherever the vessel travels, and in the second example in the
EEZ, despite UNCLOS providing no justification for such an exercise of jurisdic-
tion. To address this issue, and thus complement its port state jurisdiction in relation
to the employment-related operations of vessels beyond its territorial sea, Australia
has employed the “substantial connection” approach to jurisdiction.
6.7.1 The Development of the Substantial Connection

Approach
In shipping, as in other inherently international areas of law, a state’s regulatory

ambitions do not always fit comfortably within the traditional bases of jurisdiction
273
Kuwait Airways Corp v Iraqi Airways Co (No. 6) [2002] 2 AC 883 (HL).
6.7 The Substantial Connection Approach to Jurisdiction 211
(i.e. jurisdiction based on territory, nationality, and so on).274 The three primary
pieces of legislation discussed in this work each provide an example of states
attempting to regulate international shipping in a way that extends beyond rules
on vessel conditions. One group of examples includes provisions that have
implications for vessel operations beyond the scope of the port state’s territorial
jurisdiction, such as the need to follow a cabin access policy for cruise lines, or
Australia’s working hours regime. A second group involves regulations affecting
vessel administration, requiring vessel operators who may be based in other
jurisdictions to take certain actions on the basis of their vessel’s entry into port,
such as the need to arrange a certain kind of insurance or pay a certain level of crew
wages.
In these situations other accepted bases of jurisdiction, such as nationality or the
protective/security principle are of little assistance. They are too narrow in scope to
address the majority of shipping issues. The effects doctrine may occasionally be
helpful, but few shipping regulations outside the environmental field concern
identifiable “effects” of a kind suitable for sustaining a criminal action against a
foreign vessel. Port entry conditions may provide a more effective approach, but are
by no means uncontroversial from a legal perspective, meaning it may be advisable
for the port state to have alternative arguments up its sleeve.
Combined with this lack of flexibility in the traditional bases of jurisdiction, the
practice of flagging a vessel in a lightly-regulated offshore registry, while spreading
the control, formal ownership, and management of the vessel between companies
based in one or more third states, has long created frustration for regulators. The
idea of a “genuine link” between a vessel and its flag state has long ceased to have
any real meaning in the industry,275 and this is unlikely to change given that
international law prohibits a third party state from challenging the validity of
another state’s conferral of nationality.276 As any attempt to argue along these
lines would be futile, regulators in coastal states need new weapons to deploy in the
fight against substandard operators.277 The concept of jurisdiction based on the port
state approach, but combined with the “substantial connection” concept may yet
provide the solution.
274
275
The MV Saiga (No 2) (1 July 1999) Case 2 (ITLOS), para 83; see also Burke, “Threats to the
Public Order of the Oceans” (1988), 388; Valenzuela, “Enforcing Rules against Vessel-Source
Degradation of the Marine Environment: Coastal, Flag and Port State Jurisdiction” (1999),
487–488; Brownlie, Principles of Public International Law (2003), 410–412; König, “Flags of
Convenience” (2008), paras 12 and 24.
276
The MV Saiga (No 2) (1 July 1999) Case 2 (ITLOS), para 83.
277
Comment, “The Effect of United States Labor Legislation on the Flag-of-Convenience Fleet:
Regulation of Shipboard Labor Relations and Remedies Against Shoreside Picketing” (1960),
509–510.
In the public international law context the “substantial connection” concept is

most commonly associated with Mann, who argued in a 1964 article that a state
should be acknowledged as having prescriptive jurisdiction if278:
. . . its contact with a given set of facts is so close, so substantial, so direct, so weighty, that
legislation in respect of them is in harmony with international law and its various aspects
(including the practice of States, the principles of non-interference and reciprocity and the
demands of inter-dependence). A merely political, economic, commercial or social interest
does not in itself constitute a sufficient connection.
Mann promoted this change of approach to jurisdiction under international law

because he believed that the traditional analysis (favouring territorial jurisdiction at
the expense of almost all other concepts) was unacceptably rigid and uncertain.279
One of his concerns was that the mere presence of a foreign national within a state’s
territorial jurisdiction does not always justify the extensive application of that
state’s laws,280 a situation highly relevant to the fast turn-around times of contem-
porary shipping, in which a foreign vessel may remain in port for only a few hours
before departing for another international destination.
The essential question, difficult to answer in the abstract, is where to draw the
line between a legitimate exercise of jurisdiction as compared with an excessive
one. In other words, when is the connection between the person, fact or event and
the legislating state sufficiently substantial? Mann proposed that the first test a state
should satisfy would be the general limits on prescriptive jurisdiction, outlined in
Chap. 2, such as whether there had been any abuse of rights. Next, the state would
have to show that its regulations complied with any other relevant rules of interna-
tional law,281 for example any applicable articles of UNCLOS relating to jurisdic-
tion in the maritime context.
Another principle Mann referred to, that of non-interference with the interests of
other states, demonstrates that he was primarily concerned with limiting state
abuses of territorial jurisdiction, as opposed to justifying the extension of jurisdic-
tion to extraterritorial persons and activities.282 His reference at the same time to
“reciprocity and the demands of inter-dependence” is essentially the group of
278
Mann, “The Doctrine of Jurisdiction in International Law” (1964), 49. The idea was partly
drawn from examples arising in jurisdictions operating a federal system of government, and used
to allocating powers between states and central authorities: 45–46. See also Mann, “The Doctrine
of International Jurisdiction Revisited After Twenty Years” (1984), 28–29.
279
See Mann, “The Doctrine of Jurisdiction in International Law” (1964), 31–43 and 50; see
similarly Lowe, “Blocking Extraterritorial Jurisdiction: The British Protection of Trading Interests
Act, 1980” (1981), 281–282.
280
281
282
For example, the following illustration is used: “An alien individual present within the territory
for a day or so may be subject to duties of registration, but it does not by any means follow that he
is also so closely connected with the territory as to render it lawful to subject him to taxation”:
policy considerations outlined in Chap. 3 that states must be mindful of when

considering the impact their laws may have on trade and international relations.283
In formulating this approach Mann argued that the circumstances relevant to the
exercise of jurisdiction based on the territorial principle (e.g. the presence of a
vessel in port) would still be relevant to any determination of “substantial connec-
tion”, but not necessarily determinative.284 Similarly, given the overlapping nature
of international jurisdiction, the idea would not be to determine a state’s exclusive
right to regulate the matter in question, but rather to establish a legitimate basis for
any laws that have an express or potential application to the nationals or interests of
foreign states. Accordingly another state’s close relationship to the matter in
question would be a relevant, but not determinative factor.285 However, Mann
saw an ideal situation as one in which a single state would be acknowledged as
having jurisdiction over a given set of facts, so that a principle of exclusivity could
be developed. If anything international law has developed in the opposite direction
as far as shipping is concerned, with the flag state sharing more and more authority
with port states, in particular where matters of safety and environmental standards
are concerned.
Although not all scholars employ the same language, the essential features of
this approach have attracted supporters.286 Brownlie has noted the difficulties posed
in applying the existing jurisdictional principles, “in substance generalizations of a
mass of national provisions”, which may overlap or prove inadequate in some
circumstances. His view is that those advocating a substantial connection approach
have “considerable justification”,287 and explicitly refers to its potential use in
shipping matters.288 Molenaar has described it as “a general limitation on jurisdic-
tion imposed by international law”, which may be used by an international tribunal
in its analysis of the legitimacy of a certain piece of legislation.289
Given the lack of case law at the international level on the subject of jurisdiction
over vessels, or a substantial body of consistent state practice, there is as yet no
283
284
285
286
See for example Bowett, “Jurisdiction: Changing Patterns of Authority over Activities and
Resources” (1982), promoting the concept of a “balancing of interests” in order to determine the
reasonableness of a state’s exercise of jurisdiction; Maier, “Jurisdictional Rules in Customary
International Law” (1996) where Bianchi puts forward a variation on the concept whereby the
substance of each connection is determined by its acceptance by other states (at 90–92). In addition
the ICJ used a “real and effective” connection approach used to assess the nationality of an
individual in the 1955 Nottebohm case: Nottebohm Case (Second Phase) [1955] ICJ Reports 4, 24.
287
Brownlie, Principles of Public International Law (2003), 305. Brownlie refers to this approach
as “effective connection” (at 317); see also Smith, State Responsibility and the Marine Environ-
ment (1988), 140–141.
288
289
age” (2007), 228.
explicit acceptance or rejection of this approach as far as international maritime law

is concerned. However, there are some domestic maritime cases where the potential
of the approach has been touched upon, notably in situations that cross the boundary
between our common perceptions of private and public international law.
A notable example is the case of Lauritzen v Larsen, which primarily involved
the issue of jurisdiction over shipboard torts in the context of claims under the
United States’ Jones Act.290 Examining the claim of a Danish seafarer injured on a
Danish-flagged vessel which happened to be visiting a United States port, the
Supreme Court went through a series of factors that might have relevance in the
case of a maritime tort such as the vessel’s flag, the place the tort was committed,
the seafarer’s domicile and so on.
More interesting from the international law perspective were the Court’s
comments at the more general level, where it dealt with the ideas governing the
concept of jurisdiction in international maritime law. Noting that if each country’s
courts were to exploit the broad wording of their country’s statutes to the full limit
of their power then the “multiplicity of conflicting and overlapping burdens would
blight international carriage by sea”,291 the Court referred to the idea that nations
deferred to each others’ interests out of comity and reciprocity, attempting to292:
. . . avoid or resolve conflicts between competing laws by ascertaining and valuing points of
contact between the transaction and the states or governments whose competing laws are
involved. The criteria, in general, appear to be arrived at from a weighing of the signifi-
cance of one or more connecting factors between the shipping transaction regulated and the
national interest served by the assertion of authority.
This supports the idea that the substantial connection approach should borrow
from private international law. In that field jurists have been determining the
connections between contracts, torts and other matters for many decades, and
using these connections to determine the proper allocation of jurisdiction between
domestic courts.293 International law as applied to the jurisdiction of states could
benefit from these developments.
While they are usually treated separately by scholars, there is arguably a close
and complimentary relationship between the system of determining a state’s proper
jurisdiction over foreign vessels in the regulatory sense, and that of determining a
state’s jurisdiction over foreign vessels in the private law sense. As Mann has put it,
the conflict of laws doctrine is294:
. . . a product of municipal law, which has to stand the test of the international doctrine of
jurisdiction. In other words, it is the function of jurisdiction to define the international scope
290
Merchant Marine Act 1920, 46 USC 30104.
291
292
293
See for example Collins (ed), Dicey, Morris and Collins on the Conflict of Laws (2012), 33–36.
294
Mann, “The Doctrine of Jurisdiction in International Law” (1964), 19; see also Mann, “The
Doctrine of International Jurisdiction Revisited After Twenty Years” (1984), 28–31; Maier,
“Jurisdictional Rules in Customary International Law” (1996), 79–81 (Bianchi).
which the municipal legislator is entitled to give his enactments. The conflict rule
implements and gives effect to the requirements of public international law. If jurisdiction
provides the frame or limit, the conflict rule fills it in. . . . If the doctrine of jurisdiction
defines the States enjoying, in given circumstances, the international right of regulation,
private international law decides which of several laws enacted in the exercise of such right
shall prevail in a given country. However, public international law does not contain detailed
rules regulating the application of this or that legal system. It merely provides the principles
which limit the freedom or competence of States in enacting the conflict rule.
No state simply applies the lex fori on every occasion,295 and some states’ courts
will dismiss an otherwise valid claim to jurisdiction in favour of some other forum
through the doctrine of forum non conveniens.296 If the substantial connection
approach began to enjoy more widespread acceptance by the international commu-
nity in relation to port state jurisdiction, then private international law approaches
of this kind could support the notion that there should be some occasions in which a
port state has territorial jurisdiction over a visiting foreign vessel, but must none-
theless refrain from exercising it in circumstances where it lacks further connecting
factors. In other words the reluctance to allow civil proceedings to be taken in the
absence of a sufficient level of connection with the lex fori should militate against
unfettered territorial jurisdiction in the public law context of shipping regulation.297
Akehurst, who expressed scepticism at Mann’s arguments on this point,
suggested that state practice provides many examples of states claiming jurisdiction
over civil matters with which they have no real connection, without diplomatic
protest, leading to the conclusion that customary international law imposes no
limits (apart from rules of immunity) on the jurisdiction of domestic courts in
civil trials.298 This line of argument could be used to draw a parallel with the
shipping context, pointing towards the outcome that appears to dominate current
state practice in the exercise of port state jurisdiction, namely that international law
effectively places no significant limits on states’ jurisdiction as regulators. Alterna-
tively it could be taken as a sign that port states could abuse the substantive
connection approach even while claiming to adopt it in practice.
Whichever view is favoured, in the normal course of events domestic courts
determine the law that should apply to the claim before them (or in some cases the
proper jurisdiction for the claim) by reference to a series of connecting factors. For
example, both the EU’s Rome I and Rome II Regulations, dealing with the law
applicable to contractual and non-contractual obligations respectively, are based on
the notion of identifying the law most closely connected with the situation in
question.299 If the substantial connection approach were to be adopted under
295
296
See Tetley, International Maritime and Admiralty Law (2002), 412–413.
297
298
Akehurst, “Jurisdiction in International Law” (1972–1973), 170–177.
299
See for examples Regulation No 593/2008 of 17 June 2008 on the law applicable to contractual
obligations (Rome I), recitals 16 and 21 and arts 4(3) and (4), 5(3), 7(2) and 8(4); Regulation
(EC) No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations (Rome II),
international law for the purposes of determining the limits of port state jurisdiction
then private international law examples such as these, in addition to the approaches
taken by courts familiar with the jurisdictional challenges arising from federal
systems (such as the ECJ, United States Supreme Court, and the High Court of
Australia) would become important precedents.
Although any approach focusing on a vessel’s ownership or other factors will not
enjoy the certainty provided by application based solely on vessel flag,300 or
unfettered territorial jurisdiction, the aim in the case of international law would
be to use the substantial connection approach to justify the application of a
particular law to a defined class of foreign vessels.301 While not describing her
approach in precisely these terms, Johnson captures the essence of this concept
when stating that “the greater the nexus between a port State’s interest and the
necessity of regulating ships’ activities to protect that interest, the stronger the
grounds are for establishing such conditions”.302
The aim would be to identify various factors that go towards justifying the
exercise of jurisdiction by a port state over a foreign vessel, and then evaluate
each new port state measure against these factors.303 In this context the third
Restatement of the United States’ law of foreign relations includes a list of factors
relevant to the justification of any exercise of prescriptive jurisdiction, including the
measure’s consistency “with the traditions of the international system”.304 Mean-
while Oliver has suggested 16 further factors specific to the shipping context that
could be used in such an assessment, including for example whether the law will
hinder navigational interests and the measure’s relationship with any IMO/ILO
regulations.305 Notions such as whether the matter being regulated was so “inter-
nal” to the ship as to be an improper subject of port state jurisdiction could then be
added as one such factor, as opposed to a stand-alone test of international law as
proposed by the advocates of the internal affairs approach. Naturally a crucial factor
would be the existence of the flag state’s competing jurisdiction, and the weight
given to this.
recitals 14, 18 and 20 and art 4(3). For application in the maritime employment context see
Wurmnest, “Maritime Employment Contracts in the Conflict of Laws” (2012); in the maritime tort
context see Basedow, “Rome II at Sea: General Aspects of Maritime Torts” (2010).
300
Comment, “The Effect of United States Labor Legislation on the Flag-of-Convenience Fleet:
Regulation of Shipboard Labor Relations and Remedies Against Shoreside Picketing” (1960), 514.
301
This could be contrasted with the domestic court’s role of identifying on a case-by-case basis
whether a particular vessel entering port had sufficient connections with the state to be subjected to
its laws, see McCulloch v Sociedad Nacional de Marineros de Honduras 372 US 10 (1963) (SC), 19.
302
Johnson, Coastal State Regulation of International Shipping (2004), 42, see also 52.
303
For a similar proposal focusing primarily on jurisdiction over foreign corporations in the
competition law context see Bowett, “Jurisdiction: Changing Patterns of Authority over Activities
and Resources” (1982), 24–26.
304
American Law Institute, Restatement of the Law Third: The Foreign Relations Law of the
United States (vol 1, 1987), para 402.
305
Oliver, “Legal and Policy Factors Governing the Imposition of Conditions on Access to and
Jurisdiction over Foreign-Flag Vessels in US Ports” (2009), 325 and following.
The approach would allow flag states to, at least on some occasions, demonstrate
that a port state had exceeded a reasonable level of prescriptive jurisdiction despite
the presence of the vessel in its territory. This would be particularly relevant in the
context of rules on vessel administration, as in situations where a foreign vessel
briefly visits port it would be excessive to apply port state legislation requiring
far-reaching changes to be made to an offshore operator’s administrative
arrangements. To a lesser extent it would become harder to justify regulations
governing the extraterritorial operations of foreign vessels, notwithstanding
arguments over port entry conditions, as it would be more difficult to demonstrate
the required connection between the activity in question and the interests of the port
state. Of course, there would always be a risk that port states would be overly
subjective in applying the relevant criteria when legislating.306
A related concept used in some EU maritime legislation is that of the “host
state”,307 whereby rules are extended to vessels that are based in, and operate
from, EU ports on a regular basis. To date this has been limited to passenger vessels,
with a recent Directive defining the concept as “a Member State to or from whose
port(s) a ship or craft, flying a flag other than the flag of that Member State, is
carrying out domestic voyages”.308 While it was argued in the NILOS report that the
jurisdiction being exercised in such cases is no different from that of regular port
state jurisdiction,309 Ringbom has suggested that the basis of host state jurisdiction is
less certain, and may even be based on a different jurisdictional concept. His analysis
notes that host states have taken on more detailed inspections of vessels operating
from their ports than regular port state control measures, including an ex ante
verification of the ship’s suitability to begin operating and placing “obligations on
shipowners and operators, irrespective of their nationality, sometimes by ‘side-
stepping’ the flag State altogether.”310 This suggests clear parallels with the
approach taken under the Fair Work legislation.
In this author’s view, the maritime host state concept is best viewed as a
development towards the substantial connection approach. While based primarily
on port state jurisdiction, as both the authorities cited above agree, the EU’s
approach to regulating regular passenger vessel services draws on their increased
connections with the port state in order to justify more extensive regulation than
would normally be the case with a visiting foreign vessel. In practical terms, as the
vessel keeps coming back to port on a regular basis, it is much easier to keep an eye
306
International Bar Association, Report of the Task Force on Extraterritorial Jurisdiction (2008), 24.
307
The “host state” concept is used in many areas of EU law and policy, but it does appear to be
developing a shipping-specific meaning, and this section is only intended to refer to the use of the
term in the maritime context. For an overview of earlier examples see Ringbom, The EU Maritime
Safety Policy and International Law (2008), 297–307.
308
Directive 2009/45/EC of 6 May 2009 on safety rules and standards for passenger ships, art 2(u).
309
States’ or Third Countries’ Flags: Aspects of International Law (2008), 9 and 11.
310
Ringbom, The EU Maritime Safety Policy and International Law (2008), 307–310.
on it and ensure that it is being operated in accordance with local laws.311 There is
also a parallel with the United States Cruise Vessel Security and Safety Act
discussed in Chap. 4, as the focus on passenger safety has allowed the EU to be
more assertive in its regulation of these vessels than might have been the case with
cargo services.312
The substantial connection approach need not represent a controversial or
surprising development under international law in the context of shipping regula-
tion. Instead it would represent an acknowledgement that the traditional bases of
jurisdiction are not always adequate to govern the complex nature of international
activities. For example, the Cruise Vessel Security and Safety Act is aimed at cruise
lines known to be headquartered in the United States, and known to flag their
vessels elsewhere. It should not be controversial for the United States to regulate the
safety aspects of these companies’ operations just because of this flag factor if other
more significant factors point towards the United States. In the international
maritime law context its development is likely to be used to justify expanded claims
to port state jurisdiction, as evidenced by the EU’s “host state” concept, and the Fair
Work Act as discussed below. Coastal state jurisdiction would of course remain
subject to the rules of UNCLOS. However, the approach could also provide a basis
for flag states to cry “no more” when instances of particularly extensive port state
measures arose on the basis of no more than a foreign vessel’s brief port visit.
6.7.2 Substantial Connection and the Act
The Fair Work Act’s provisions are significant, because they represent a clear
invocation of the substantial connection approach by a state in order to complement
regulations that could, on the face of the legislation, apply to foreign shipping on an
extraterritorial basis. In the Explanatory Memorandum prepared by the legislature
when the Fair Work Bill was first introduced to Parliament it was noted, for
example, that313:
311
What a port state adopting this kind of approach must avoid is any assertion to the effect that a
foreign-flagged vessel has taken on the port state’s nationality as a result of the substantial
connection between it and the port state. This issue was raised before the ECJ in a case where
Denmark was attempting to enforce certain EU fisheries laws against a foreign-flagged vessel that
was otherwise EU-owned, -based, -operated and -crewed. The ECJ held that in accordance with
international law a vessel has only one nationality, and a state cannot decide otherwise under its
domestic law despite the only link to the flag state being the “administrative formality of
registration”: Anklagemyndigheden v Poulsen [1992] ECJ Case C-286/90, paras 12–16.
312
See Ringbom, The EU Maritime Safety Policy and International Law (2008), 309.
313
Parliament of the Commonwealth of Australia, Fair Work Bill 2008: Explanatory Memoran-
dum (2008), 25–26 (emphasis added).
The Bill applies beyond the EEZ and the continental shelf within recognised limits under
international law. In general terms, this means there must be a sufficient connection
between the Bill and Australia in terms of geography or nationality of persons.
[. . .]
The definitions of Australian employer and Australian-based employee in clause
35 encompass employers and employees with a substantial connection to Australia, for
the purpose of applying the Bill to certain ships, and to persons beyond the EEZ and the
continental shelf.
The Act’s use of the substantial connection314 approach does not involve the
abandoning of the kind of legislative techniques associated with more specifically
shipping-focused measures relying on port state jurisdiction. Instead the substantial
connection approach used can be seen as a means of augmenting Australia’s port
state jurisdiction in order to justify more extensive regulations than would be
justified on the face of UNCLOS while the vessels in question are between
Australian port visits. In other situations the approach could be used to interpret
as excessive a claim to jurisdiction over an employer whose operations are not
sufficiently connected with Australia, despite the Act’s provisions appearing appli-
cable at first glance.
As discussed above the Fair Work legislation uses a port state (territorial)
connection as the primary basis for the exercise of jurisdiction, then adds other
connecting factors such as the vessel being chartered or operated by an Australian
employer (with this latter concept being defined to include companies incorporated
within Australia).315 The approach essentially demotes the authority of the vessel’s
flag state to a tertiary consideration, outranked by the stronger claim Australia has
to govern the employment conditions of a vessel that is in a practical sense an
Australian concern.
Up until the introduction of the AISR option in mid 2012, an Australian
shipowner contemplating Panama or another popular registry for their vessel’s
flag was going to have to find a reason other than freedom from paying higher
Australian wages to justify their decision. The widely acknowledged conceit of
flagging out to a registry with almost no interest in the vessel’s employment
conditions has therefore been largely thwarted by the Australian legislation of
2009 and 2012. The success of this approach as a matter of policy remains to be
seen: the new laws may or may not play a role in successfully reinvigorating
Australia’s domestic shipping industry. However, from an international law per-
spective the Australian approach gives rise to different considerations.
First of all, the Fair Work Act’s application to shipping can be seen as an
important step towards wider acceptance of the substantial connection approach,
314
The phrase “sufficient connection” is also used in Australian law in the context of assessing the
connection between laws and the relevant heads of power found in the Australian Constitution: see
Re Maritime Union of Australia (ex parte CSL Pacific Shipping Inc) (2003) 214 CLR 397 (HCA),
413; Commonwealth of Australia Constitution Act 1900; Barnett, “The Corporations Power and
Federalism: Key Aspects of the Constitutional Validity of the Workchoices Act” (2006), 95–97.
315
Fair Work Act 2009, ss 33(1)(d)(i), 34(1)(b)(i) and 35(1).
with states beginning to look “beyond the veil” of flags of convenience and towards
the matters that really bind a vessel to the country from whose ports it operates. A
conclusion of this nature will gain strength if Australia does not receive any
international protests regarding the Act, particularly if there is an example of the
Act’s provisions being enforced against a foreign-flagged vessel for matters involv-
ing the vessel’s operations beyond the territorial sea. Even more weight could be
given to this line of argument if other states begin to emulate the approach, with the
EU for example becoming emboldened to reconsider its proposals to regulate
foreign-flagged vessels. However, at present the EU seems content to follow a
more multilateral course.316
However, the Australian approach is not immune to criticism under international
law, particularly as UNCLOS does not support the use of a substantial connection
approach in relation to jurisdiction over vessels outside of a state’s territorial
jurisdiction, instead setting out specific issues a coastal state may regulate across
its various maritime zones. The detail given to coastal state jurisdiction in
UNCLOS, and the traditional authority of flag states where employment matters
are concerned, are both significant hurdles. Nonetheless, as has been noted else-
where in this work, UNCLOS is not the only word on matters of jurisdiction over
vessels. If port entry conditions can be used to extend jurisdiction beyond the
confines of port as discussed in Chap. 4, then a substantial connection may also
be drawn upon to justify more expansive claims.
Using these two concepts in combination, Australia can argue that compliance
with the Fair Work legislation is a port entry condition, just as the United States
could argue that the substantial connection between that country and the cruise
industry justifies a more expansive claim to regulate activities at sea than might
otherwise be the case.317
6.8 Chapter Summary
The subject of maritime employment is arguably more extensive and complex than
the other two key areas discussed in this work, and between the various flag states,
port states, ILO conventions, IMO conventions, crewing agencies, union interests,
shipowners’ interests, cabotage regimes, contracts and principles of public and
private international law it can be difficult to get a firm grasp on the issues. The
chapter has explored one recent example of a significant port state undermining the
usual flag state dominance of maritime employment matters, a dominance that has
been a key driver behind the move to offshore registers.
316
See European Commission, Proposal for a Directive of the European Parliament and of the
Council amending Directive 2009/16/EC on port State control (23 March 2012).
317
These concepts need not be expressly mentioned in a piece of legislation to be used as a
legitimate justification under international law.
By taking an approach that will include crew of any nationality working aboard
certain foreign-flagged vessels with substantial connections to the country,
Australia has set an important example of state practice in international law
terms. Although its careful deployment of savings clauses within the legislation
has reduced the chances of a major jurisdictional scrap over the Act’s application,
and the 2012 reforms have removed much of the potential for controversy where
vessels connected with Australia are concerned with the introduction of the AISR,
the Fair Work legislation is nonetheless an important step away from the artificial
nature of flag state jurisdiction in the maritime employment context.
Chapter 7
Conclusions
7.1 Overview of Port State Jurisdiction
This book began by asking the extent to which the statement “if you want to visit
my port, you have to obey my rules” holds true. As the chapters which followed
have suggested, the answer is not entirely clear, but certainly leans towards the port
state having a very extensive jurisdiction over visiting foreign vessels. Even in
situations where the exact legal position is ambiguous, port states will in most cases
be able to find some arguable basis upon which to justify their actions. The primary
restraints on their activities appear to be policy-driven, rather than any limits
imposed by international law.
This is evident from a survey of the key principles of international law relevant
to this area. Perhaps the most important factor is that UNCLOS, the primary
instrument detailing the law of the sea, contains almost no provisions as far as
port state jurisdiction is concerned. As a result it is insufficient to look exclusively
to this convention for the extent of a state’s jurisdiction over foreign vessels in port,
as it is likely to give a misleading picture of the concept’s true extent. Only once this
is accepted, and one begins looking back to more fundamental rules of international
law, can the potential of port state jurisdiction be fully explored. These include a
state’s largely unfettered prescriptive jurisdiction,1 the primacy of the territorial
principle as a basis for the exercise of this jurisdiction, and the well-accepted notion
that a foreign national entering another state’s territory is subject to that state’s
jurisdiction. These basic concepts must then be applied to the context of interna-
tional merchant shipping.
Any foreign-flagged ship entering port will be subject to this territorial jurisdic-
tion. The flag state’s authority over the vessel means that there will be at least two
states with a concurrent interest in the vessel during this time, and the instinct of
1
That is, jurisdiction subject to the abuse of rights doctrine, as well as the principles of good faith
and proportionality, and the need to avoid discriminating on the basis of nationality: see Chap. 2,
Sect. 2.1.4.
224 7 Conclusions
many maritime lawyers would be to argue that the flag state has the upper hand in
this relationship. However, with the exceptions of government vessels and vessels
in distress, international law points in the other direction, providing no significant
limitation on the port state’s jurisdiction. This is reinforced by the absence of any
general right of port access under customary international law. Some have argued
that the “internal affairs” approach meets the requirements for a binding rule of
customary international law, but the majority of authorities rightly reject this
notion.2
While states often refrain from exercising jurisdiction over many aspects of the
merchant vessels visiting their ports, there is no requirement that they do so under
international law. In this author’s view contemporary state practice is moving
beyond the stage at which such a rule can convincingly be argued for, given
developments such as the three pieces of legislation analysed in this book, each
of which deals with aspects of shipping that have traditionally been considered
matters for the flag state to regulate (if at all).
The notion of non-flag state regulation raises the question of why the interna-
tional community should consider the position of port states, as opposed to coastal
states more generally. Apart from the different environmental and economic
interests a state has in its ports as opposed to its coastal waters, the answer to this
issue can be found in UNCLOS. In contrast to the position applicable to ports, the
jurisdiction of a coastal state over vessels in its territorial sea, EEZ, and other
maritime zones is far more clearly defined – and more constrained. The doctrine of
innocent passage, and the limited scope of jurisdiction applicable to the EEZ, mean
that the effective regulation of vessels merely passing through a state’s maritime
zones is far more difficult to justify. In addition, from a practical perspective, it is
far simpler and safer to wait until a vessel arrives in port before assessing its
compliance with domestic laws.
While the label itself may only have come into use in the 1970s, the idea that a
vessel visiting a foreign port would have to comply with certain local rules is of
ancient origin, and is closely related to traditional areas of state interest such as
health, immigration, customs and revenue law. Placing port state jurisdiction within
a wider historical perspective, rather than viewing it as a distinctively “post-
UNCLOS” idea, helps to assess the growth and scope of the concept more clearly.
Key factors underlying the trend towards greater use of port state jurisdiction, and
which form the factual background to much of the discussion in this book, include
the phenomenon of flagging vessels in offshore registers and the related issue of
poor regulatory oversight, the IMO’s work at the international level, and the still-
growing emphasis on shipping’s environmental impact. These developments have
led to a situation in which regional port state control organisations cooperate in the
enforcement of international shipping standards; a situation that acknowledges the
2
See Chap. 2, Sect. 2.4.3.3 and Chap. 6, Sect. 6.4.1. The concept may of course have a domestic
application, for example in the context of United States law when determining whether a domestic
rule will apply to a foreign vessel: Spector v Norwegian Cruise Line Ltd 545 US 119 (2005) (SC).
7.2 Port State Jurisdiction Is Growing 225
inadequacy of a system that previously left almost all regulation at the discretion of
flag states.
Despite the strong international, cooperative element of shipping regulation,
there are times when states have and will decide to enact unilateral requirements.
Taking the examples discussed in this book, the United States, the EU, and
Australia each have the necessary economic clout and enforcement infrastructure
to apply their own standards to visiting foreign vessels. In some cases this will take
the form of regulations based on coastal state jurisdiction, but in time it is likely that
the majority of important developments will invoke port state jurisdiction.
Any decision to introduce unilateral regulations will involve a balancing of
economic and political interests, and most will be carefully framed so as to attract
as little industry or international opposition as possible. Furthermore, the majority
of such laws are likely to involve aspects of ship safety or the protection of the
marine environment. The environmental field in particular will undoubtedly see the
fiercest regulatory battles in the decades to come as issues involving fuel, energy
and emissions come under greater port state scrutiny.3 Nonetheless, in order to
broaden the existing discussion in this field the discussion in this book has been
based around examples from less widely-discussed areas such as safety measures
that are not specifically “maritime” in character, third party liability insurance not
exclusively connected with environmental or passenger-related risks, and the
employment conditions of seafarers.
While the policies underlying regulations that are applied (either specifically or
incidentally) to shipping are innumerable, this book has provided a framework
around which to discuss the practical and legal issues arising from the application of
port state laws to different aspects of shipping.4 This takes the form of three
categories of shipping regulation, namely rules concerning vessel conditions, vessel
operations, and vessel administration. They key legal distinction between them is
that the first category involves matters located entirely within a port state’s territo-
rial jurisdiction, whereas the second and third categories involve extraterritorial
elements. In practice the first and second categories are more numerous than the
third. Vessel administration has been distinguished as a category primarily due to
the enforcement issues involved, as in other respects such rules share the legal
characteristics of the first two categories.
7.2 Port State Jurisdiction Is Growing
This book has sought to establish the current scope of port state jurisdiction within
the far longer tradition of states exercising jurisdiction over foreign vessels visiting
their ports. Nonetheless, there can be no doubt that the potential of port state
3
See UNCTAD, Review of Maritime Transport 2011 (2011), 26–29 and 113–119.
4
226 7 Conclusions
jurisdiction as a regulatory approach has been truly realised only in recent decades.
This has come about partly as a result of UNCLOS’s success in establishing the
boundaries of coastal states’ maritime zones and the limits of their jurisdiction over
foreign vessels in these zones.
With the long-standing uncertainty over these issues largely resolved, the ques-
tion of states regulating international shipping in their port state capacity has come
to the fore. By way of illustration, in 1999 Ringbom wrote that unilateral action by
port states was rarely resorted to in practice,5 whereas by the time his 2008 book
was published he was able to dedicate almost 200 pages on the subject regarding the
EU’s activities alone.6
Not all instances of port state regulations are that controversial, especially where
they merely fast-track the implementation of internationally-agreed rules, or sup-
plement those rules in a minor way.7 Nonetheless, the port state approach to
regulating international merchant shipping is growing. Some of the more significant
examples of unilateral measures that have been imposed by port states prior to the
legislation discussed in this book include:
– The Oil Pollution Act 1990 double-hull requirement for oil tankers. The wording
of the relevant provision extends this requirement into the United States EEZ,8
but it has been officially stated that it will only ever be applied to and enforced
against vessels that visit a United States port as opposed to merely transiting the
territorial sea or EEZ.9 By contrast there is no such official statement available in
relation to the certificate of financial responsibility requirement, which has a
similarly broad geographical application, but has its origins in an older statute.10
– The Stockholm Agreement 1996, a regional agreement that introduced stability
requirements more stringent than those found in SOLAS in relation to ro-ro
5
Ringbom, “Preventing Pollution from Ships: Reflections on the ‘Adequacy’ of Existing Rules”
(1999), 24; compare the contemporaneous conclusions of Anderson regarding the increased use of
port state jurisdiction in the context of international agreements: Anderson, “Port States and
Environmental Protection” (1999), 342–344.
6
Ringbom, The EU Maritime Safety Policy and International Law (2008), ch 5. Not all of the
examples discussed by Ringbom are of a purely unilateral nature.
7
8
See Oil Pollution Act 1990, s 4115; 46 USC 3703a(a), applicable to vessels “operating on the
waters subject to the jurisdiction of the United States, including the Exclusive Economic Zone”.
9
United States House of Representatives, “House Conference Report No 101-653” (1990),
819–820; see Johnson, Coastal State Regulation of International Shipping (2004), 54, fn 177;
Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Coverage”
(2007), 232–233.
10
Oil Pollution Act 1990, s 1016; 33 USC 2716, applicable to vessels “using any place subject to
the jurisdiction of the United States” or “using the waters of the exclusive economic zone to
transship or lighter oil destined for a place subject to the jurisdiction of the United States”; see
similarly Water Pollution Prevention and Control Act 1972, s 311(p). Compare United States
House of Representatives, “House Conference Report No 101-653” (1990), 797–798 and
819–820.
7.2 Port State Jurisdiction Is Growing 227
passenger ferries operating scheduled services in the Baltic Sea and North-West
Europe (subsequently an EU-wide law)11;
– The EU’s 2003 Regulation increasing the phasing-out of single-hulled tankers12;
– The EU’s 2005 marine fuel requirements13;
– Australia’s 2006 announcement that its compulsory Torres Strait pilotage
regime would be enforced only when offending vessels entered an Australian
port.14
The three pieces of legislation discussed in Chaps. 4–6 are very different in
terms of subject-matter and legislative background, but each is an example of
unilateral legislation applied to foreign-flagged vessels by way of port state juris-
diction. This is expressly provided for in relation to the United States’ Cruise Vessel
Safety and Security Act and the EU’s liability insurance Directive. Australia’s Fair
Work legislation takes a more nuanced approach that is nonetheless underpinned by
the territorial jurisdiction of a state over vessels visiting its ports. Furthermore,
unlike most measures based on port state jurisdiction, none of these measures relate
directly to vessel safety or the environment.15 One of the aims of this book is simply
to present a discussion of these three pieces of legislation as new examples of state
practice in an area of growing importance to international maritime law.
As other authors have pointed out, the continuing growth of measures based on
port state jurisdiction is occurring in something of a vacuum as far as international
case law is concerned. Certain international agreements are beginning to acknowl-
edge its presence in an indirect fashion, on at least one occasion by denying any
unilateral action by states parties,16 but more often by indicating the right of states
to go beyond the internationally-agreed measures if desired (in the maritime context
provisions of the latter kind can fairly be read as more relevant to port states than
flag states).17 There is no question of a comprehensive international agreement on
11
Agreement Concerning Specific Stability Requirements for Ro-Ro Passenger Ships Undertaking
Regular Scheduled International Voyages Between or To or From Designated Ports in North West
Europe and the Baltic sea (28 February 1996). See also Directive 2003/25/EC of 14 April 2003 on
specific stability requirements for ro-ro passenger ships.
12
accelerated phasing-in of double hull or equivalent design requirements for single hull oil tankers.
13
content of marine fuels.
14
Australian Maritime Safety Authority, Revised Pilotage Requirements for Torres Strait (2006).
15
The Cruise Vessel Security and Safety Act has a passenger safety focus, as opposed to a focus on
navigation or vessel safety. The insurance Directive has a connection to safety and the environ-
ment in the sense that an uninsurable vessel is unlikely to be safe and thus pose an environmental
threat, this cannot convincingly be described as the Directive’s primary purpose.
16
MARPOL, annex VI, reg 15.
17
See for examples MARPOL, art 9(2); STCW, art V(4); Agreement on Port State Measures to
Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (22 November 2009),
art 4(1)(b).
228 7 Conclusions
jurisdiction over vessels in port being developed in the near future, and this author
would not advocate such an approach. States are not likely to restrict their jurisdic-
tion in any meaningful way unless the issues involved are specific and clearly-
defined. Furthermore, as the number of examples listed above and discussed
elsewhere in this book suggests, there are too many areas of potential interest for
port states to agree on applicable limits at this stage, if ever.
Against this background it is necessary to continue analysing developments in
state practice, and perhaps in time one or more rules of customary international law
might emerge. Such a rule might for example identify certain jurisdictional
limitations specific to foreign-flagged vessels in port, or could instead go in the
other direction, establishing that port states may impose whatever rules they choose
as long as it is clear that vessels must comply with such rules as condition of visiting
that state’s ports.
7.3 The Silence of Flag States
One factor that makes it difficult to determine the boundaries of port state jurisdic-
tion is the silence of flag states at the international level. Traditional wisdom
suggests that an excessive claim to jurisdiction by one state will be the subject of
a protest by one or more others, as occurred for example in the 1920s when United
States prohibition laws were applied to foreign vessels,18 and in this way the limits
of international law can be tested.19 Such protests will generally occur after
enforcement action is taken,20 not after the mere enacting of regulations, and a
lack of protest may even be taken as a sign of acquiescence.21 Another area in
which protest is more likely to occur is the regulation of international economic
activity,22 a category within which shipping clearly falls.
Where vessels are concerned the state in the best position to protest is the flag
state. It would be difficult to deny that in recent decades “[f]lag State jurisdiction
has been continuously eroded at the expense of new jurisdictional rights for coastal
and port states”, and that this trend is likely to continue,23 so it may seem surprising
18
See Jessup, The Law of Territorial Waters and Maritime Jurisdiction (1927), 222–228. Some of
the protesting European countries even had laws which made the carriage of liquor on board ships
compulsory!
19
Lowe, “Jurisdiction” (2006), 353–354.
20
Akehurst, “Jurisdiction in International Law” (1972–1973), 169 and 176.
21
International Bar Association, Report of the Task Force on Extraterritorial Jurisdiction (2008), 19.
22
Oxman, “Jurisdiction of States” (2007), para 52.
23
Ringbom, “The Changing Role of Flag, Port and Coastal States under International Law”
(2009), 104–106: see similarly Vinogradov, “‘Tightening the Regulatory Web’: Issues and Trends
in Navigation Regimes” (1999): Developments in both domestic and international maritime
regulation have “resulted in expanding, both spatially and substantively, the powers of coastal
and port states. The freedom of commercial navigation in its traditional sense has ceased to exist.
7.3 The Silence of Flag States 229
that there has not been more flag state reaction to the growth of port state jurisdic-
tion. At this point in time few if any would disagree that “the flag State remains the
key player in implementing and enforcing international rules and standards in the
interest of the international community”.24 However, if the role of port states, both
as enforcers of international standards by way of port state control and as
promulgators of new unilateral standards, continues to grow, then will this always
be the case? Are flag states simply going to let port states regulate more and more
areas of shipping, without making some attempt to clarify the extent of their own
jurisdiction over vessels?
The importance of this issue lies in the fact that the flag state’s jurisdiction over a
vessel has traditionally been viewed as a key principle of international and maritime
law. By keeping records of the vessel, establishing any safety or other requirements
it and its crew must meet, and providing a fall-back legal regime in the case of any
crimes or other events on board, flag states have played a unique legal role to match
the historically unique circumstances of international shipping. If port states con-
tinue to muscle in on ever-larger portions of this role due to perceived inadequacies
in some flag states’ regulatory efforts, could the flag state eventually be reduced to
an authority of only secondary importance? Such a development is not likely in the
near future, but this is arguably the direction in which current trends are pointing.
One point that may shed some light on this is the pattern of flagging-out, and the
subsequent lowering of shipping standards in some quarters, that has been the
background to so many developments in shipping regulation since the mid twenti-
eth century. It is possible to speculate that, had the bulk of the world’s shipping
remained under the flags of the traditional maritime states, that there would be far
more opposition to the growth of unilateral port state regulations.
For example, when the United States Congress drafted a bill to apply domestic
safety standards to foreign-flagged passenger vessels in 1989 some 13 states
protested.25 Now there is silence when the United States requires foreign-flagged
cruise vessels to maintain video surveillance and cabin access policies even though
on their face such rules apply throughout the entirety of the vessel’s journey. In the
1960s there were protests when it appeared that United States labour laws might be
applied to visiting foreign vessels.26 Now there is silence when Australia takes steps
to regulate pay and conditions aboard foreign-flagged vessels.
Furthermore, even though several open registries have recently complained to
the IMO Maritime Safety Committee about the compulsory insurance regimes of
several unnamed countries,27 the complainants appear to have tacitly accepted the
port state’s ability to regulate this aspect of shipping. The complaint instead rests on
The ‘tightening of the regulatory web’ promises to bring about even more radical changes in the
modus operandi of international commercial shipping.” (at 484).
24
König, “Flag of Ships” (2009), para 60.
25
Boisson, Safety at Sea: Policies, Regulations and International Law (1999), 179.
26
McCulloch v Sociedad Nacional de Marineros de Honduras 372 US 10 (1963) (SC), 16–17.
27
Mongolia, Palua, St Kitts and Nevis and Sierra Leone, Flag State Implementation: Port state
control and recognized organizations (MSC 91/10/4, 5 October 2012).
230 7 Conclusions
matters of procedure and the failure to act through IMO channels rather than any
suggestion that these port states lack the jurisdiction to impose such measures on
visiting vessels. It does not appear that this complaint relates to the EU’s Directive
of 2009 specifically (following the passage of which flag states were again silent).
Of course, as the discussion in Chaps. 4–6 suggests, the three pieces of recent
legislation discussed here have been enacted in such a way as to cause a minimum
of friction with the shipping industry, thus reducing the potential of international
protest (offshore registries are only likely to complain if their clients do first).
Furthermore, there still appear to be some issues where states will protest at the
perceived impact of another state’s domestic laws on their national maritime
interests, for example the protest by the United States and Singapore when
Australia was seen to be regulating the operations of vessels in transit passage in
the Torres Strait.28 As noted in Chap. 4, this protest was sufficiently answered from
the United States’ perspective when Australia publicly announced that it would
only enforce its pilotage requirement upon a vessel’s arrival in port.29
Despite this there is a possibility that, by continuing to flag their vessels in
offshore registers with a primarily commercial interest in attracting and registering
tonnage, vessel owners are missing out on one of the fringe benefits of a more
traditional flag state: significant engagement in international affairs. If a single
vessel runs into problems in a foreign port, then it might be able to convince even an
offshore register to take action on its behalf,30 but it seems less likely that a state
whose shipping register is run for profit from an office in New York will be in a
position to keep track of international legislative developments.
The real action on behalf of shipping interests at the international level these
days comes from the offices of groups like the European Shipowners Association,
Intertanko, and others. It was Intertanko, The International Association of Dry
Cargo Shipowners, the Greek Shipping Co-Operative Committee, Lloyd’s Register
and the International Salvage Union that brought judicial review proceedings in
2006, leading to a hearing before the ECJ, on the subject of an EU shipping
pollution Directive’s compatibility with UNCLOS and MARPOL.31 Intertanko
also led a review of certain requirements for tanker vessels and their crews under
the law of Washington State in the United States Supreme Court.32
Similarly, in relation to the development of the Maritime Labour Convention,
industry bodies representing shipowners and seafarers were more active than flag
28
See Beckman, “PSSAs and Transit Passage: Australia’s Pilotage System in the Torres Strait
Challenges the IMO and UNCLOS” (2007), 337.
29
30
For example, a number of prompt release cases at ITLOS have been taken by offshore registers;
see the list of cases maintained at http://www.itlos.org.
31
The Queen, on the application of International Association of Independent Tanker Owners
(Intertanko) and Others v Secretary of State for Transport [2008] ECJ Case C-308/06.
32
United States v Locke 529 US 89 (2000) (USSC).
7.4 The Future of Port State Jurisdiction 231
states.33 These kinds of organisations are arguably now more attuned to the needs of
merchant ship operators (as opposed to defence interests for example), and in a
better position to lobby on their behalf, than many flag states’ administrations.
However, when the Intertanko-led case before the ECJ was unsuccessful, the group
was apparently unable or unwilling to find a flag state prepared to take the challenge
to the international level.
It is difficult to envisage any hard data being available to substantiate
considerations of this nature, but it could be that the cost motives behind flagging
vessels offshore will eventually result in the flag state’s role being largely ignored.
After all, if a shipowner flags a vessel in a jurisdiction with no “genuine connec-
tion” to the vessel in order to save on tax and crewing costs, why should the
international community respect this form of legal inventiveness and not simply
find other regulatory avenues to get their point across? The stage has already been
reached at which experts are legitimately questioning the usefulness of flag states at
all, given that the absence of effective regulation from irresponsible flag states has
undermined their authority, and even where responsible flag states are concerned
classification societies often perform much of the regulatory work traditionally
associated with the role.34
One can only speculate that if one or more flag states had been persuaded to
challenge one of the first examples of expanding port state jurisdiction before an
international tribunal there may have been a chance of establishing some general
jurisdictional principles in their favour. However, given the growing state practice
in this area, it would appear that vessel operators may have already missed their
chance.
7.4 The Future of Port State Jurisdiction
As the use of port state jurisdiction has grown in prominence, a number of authors
have speculated as to the legal limits of this regulatory approach.35 Churchill and
Lowe have argued that certain unilateral measures, such as the United States labour
law examples noted in Chap. 6,36 are37:
33
McConnell, “‘Making Labour History’ and the Maritime Labour Convention, 2006: Implications
for International Law-Making (and Responses to the Dynamics of Globalization)” (2009), 369.
34
See Behnam, “Ending Flag State Control?” (2003); Kovats, “How Flag States Lost the Plot over
Shipping’s Governance: Does a Ship Need a Sovereign?” (2006); Ringbom, “The Changing Role
of Flag, Port and Coastal States under International Law” (2009), 107; but see Mansell, Flag State
Responsibility (2009), 219–221.
35
For example, Jessup argued that in practice “the exercise of jurisdiction over foreign vessels in
port should be limited to matters affecting the peace, dignity and safety of the country”: Jessup,
The Law of Territorial Waters and Maritime Jurisdiction (1927), 228.
36
37
Churchill and Lowe, The Law of the Sea (1999), 68–69.
232 7 Conclusions
. . . objectionable both on the ground that they offend against the rule of comity concerning
the ‘internal economy’ of visiting ships and, more seriously, that in some respects at least
they exceed the limits of jurisdiction which can properly be claimed on the basis of the
temporary presence of foreign ships in ports.
Establishing where these limits lie is not a simple matter, and a lot currently
depends on where the requirement in question has been breached, as opposed to any
more substantive notions of what is properly a matter governed by the flag state
alone. This approach, which rests heavily (if understandably) on the idea of
territorial jurisdiction, may yet see port state jurisdiction grow into a more
far-reaching and comprehensive vehicle for maritime regulation than has tradition-
ally been thought possible. Whether or not it does is likely to depend on the length
of time powerful port states are permitted to continue applying unilateral
regulations to foreign vessels without serious international protest, thus expanding
the concept through state practice. Or alternatively on whether any international
tribunal is given the opportunity to consider and rule on these matters, thus giving
an authoritative outline of this area of international law.
7.4.1 Rules on Vessel Conditions Are Here to Stay
Based on the well-established principles of international law noted above, and the
current trajectory of state practice, port states are on firm ground when regulating
vessel conditions, such as requirements that a vessel carry a certain kind of
equipment or conform to certain design specifications. Flag states may certainly
argue that they are usually afforded an amount of leeway, in accordance with
international comity, where the vessel’s “internal affairs” are concerned. However,
international law has never reached a point where this practice could be described
as a binding legal rule. The territorial jurisdiction of the port state, combined with
the fact that any breach of static conditions can be deemed to have occurred in port,
means that all other jurisdictional factors work in its favour.
The limited line of authority, notably espoused by the Sellers decision in New
Zealand,38 that international agreements such as UNCLOS and MARPOL represent
the limits of a port state’s jurisdiction over vessels cannot be sustained. UNCLOS
does not deal with the residual jurisdiction of port states, focusing instead on the
more complex division of jurisdiction between coastal and flag states in relation to
various maritime zones. Even where a port state has ratified an international
convention it can decide to introduce more stringent rules if it wishes, absent an
express statement in the text of the convention to the effect that its residual
jurisdiction on the point is removed.39
38
Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA).
39
In all three of the pieces of legislation discussed in this book there are rules on
vessel conditions that have not been the subject of any international protest, or even
significant complaint from affected industry bodies. Taking the United States’
Cruise Vessel Security and Safety Act for example, the best outcome that CLIA
could hope to achieve was a set of regulations that fit as closely as possible with
existing industry practice, which it did by engaging closely with the legislative
process. The same can be said for the EU’s insurance Directive, which despite
ambitious beginnings ended up staying closely aligned with requirements already
met by any responsible shipowner.
7.4.2 Rules on Vessel Operations Are Going to Expand
The good news for port states is that most aspects of shipping can be dealt with by
way of rules on vessel conditions. Even if the port state’s real concern is activity
taking place beyond its maritime zones, legislation can be drafted so that this
conduct is “taken into account” upon arrival in port, as the EU has done when
imposing emissions-related charges on visiting aircraft.40 The port state then invite
vessels to operate however they like, as long as they are aware that some behaviours
may cost more than others on arrival. Alternatively a port state can rely on
statements made in port that can later become the subject of prosecutions; a course
the United States has pursued in relation to pollutant discharges by focusing its
attentions the oil record book requirement.41
However, on other occasions the subject of the port state’s concerns will not be
so easily twisted to fit exclusively within its territorial jurisdiction. In cases involv-
ing the working hours of crew, or the ongoing operation of a certain piece of
equipment, it might become clear from the legislation’s wording that the intention
was to dictate the conduct of foreign-flagged vessels beyond port limits. In some
cases the port state’s aims might coincide with the provisions of UNCLOS,
meaning it can base its actions on coastal state jurisdiction and merely enforce
the requirements in port. However, outside of the navigation safety and environ-
mental contexts this is unlikely to be the case. There are virtually no useful bases of
jurisdiction that allow port states to give their laws extraterritorial effect with any
certainty, as concepts such as the effects doctrine and protective/security principle
are too narrow in scope.
Nonetheless, there is a potential way around this, which this author believes will
be used more and more in future by significant port states like the United States, the
EU and Australia unless halted by a storm of protest or an unambiguous ruling on
the matter from an international tribunal. This involves describing the desired
conduct as a condition of port entry based on territorial sovereignty, as opposed
40
41
234 7 Conclusions
to a law that is deemed applicable to foreign vessels on the high seas and then
enforced in port.
Some would argue that this distinction is merely semantic and not supported by
UNCLOS or state practice, and if states are going to introduce regulations touching
upon any kind of extraterritorial conduct they need a proper basis of jurisdiction for
doing so (i.e. under UNCLOS or a jurisdictional principle recognised by interna-
tional law). Others take the view that as a port state can legitimately close its ports
to foreign vessels, then there can be no complaint if it only allows access subject to
certain conditions. Both arguments have merit from a legal perspective, but this
author believes that the latter is likely to succeed in time as port states continue to
favour a more expansive approach. The principle examples discussed in this book
are the operational requirements of the Cruise Vessel Security and Safety Act,42 and
the working hours requirements of the Fair Work legislation,43 but other state
practice is emerging.44
The next question is whether states taking such steps are limited to enforcement
actions that merely deny access to port (or port services), or if they are permitted to
use a wider range of options such as detentions and criminal penalties. A close
reading of UNCLOS suggests that, comparing UNCLOS articles 25(2) (referring to
port entry conditions) and 218 (providing port state enforcement jurisdiction for
extraterritorial pollutant discharges), a state may be limited to the former in the
absence of a specific basis of jurisdiction. However, this outcome would run
contrary to the principle of proportionality, given that it would demand a far
more severe penalty than the situation may call for. In practical terms a port state’s
economic interest in having vessels visit its ports, and a vessel operator’s interest in
having its vessel trade efficiently and profitably between ports, means that both
sides are likely to prefer a small criminal penalty to a port ban.
Accordingly this author doubts that, as state practice develops, legislators will be
required by international law to observe such restrictions. For example, the Cruise
Vessel Security and Safety Act involves both criminal penalties as well as an ability
to ban vessels from port. Any enforcement involving a failure to maintain video
surveillance during a voyage or adhere to the cruise line’s cabin access policy may
be viewed as too minor to result in a ban, meaning a fine is preferred. On the other
hand, if the United States authorities believe there is any question as to their
jurisdiction under international law, they may prefer to rely on a rule regulating
vessel conditions for any prosecution, leaving international lawyers without much
to analyse.
A further consideration is that in most cases the notion of port entry conditions is
used in an entirely descriptive sense, equatable with port state jurisdiction more
generally. There are many instances, some of considerable vintage, where
authorities have referred to port entry conditions in the sense of the conditions
42
See Chap. 4, Sects. 4.4.1 and 4.4.2.
43
44
that must be met for a vessel to lawfully enter port, or enter port in full compliance
with local laws. Not every regulation developed by a port state will include the
power to exclude a non-complying vessel from port as a last resort (although it is
arguably prudent to do so given the arguments in support of a more limited range of
enforcement options), but the idea that the port state could if necessary deny the
vessel entry to port still informs the exercise of its jurisdiction.
The apparent lack of any consistent and specific legal meaning being attributed
to the notion of port entry conditions by legislators, domestic courts, and
commentators is a further reason why this author believes the more nuanced
arguments, supporting a restricted reading of the concept, will not halt the develop-
ment of more expansive applications by port states in practice. The outcome could
be very different if a flag state decided to take the matter before an international
tribunal, where the legal arguments based on a close reading of UNCLOS might
carry the day. However, this approach could still backfire if a particular tribunal
decided that the power of a port state to deny port entry enabled access to be granted
on whatever conditions it saw fit. Either way, it is likely to be many years before any
definite solution to this issue is available.
7.4.3 Rules on Vessel Administration Create Enforcement

Problems
The category of shipping regulation described in this book as vessel administration

encompasses various contractual and other arrangements entered into by a ship-
owner for the purposes of operating the vessel. Each of the three pieces of legisla-
tion discussed in this book include one or more elements that fall within this
category, namely the information requirement applied to cruise lines under the
Cruise Vessel Security and Safety Act, the third party liability insurance require-
ment under the EU’s insurance Directive, and the minimum wage requirement
under Australia’s Fair Work legislation. These matters are a step removed from
those rules that directly impact on the vessel’s construction, or the manner in which
it is operated at sea. They are more closely connected with the affairs of the vessel
operator: what information is it giving potential customers? What insurance has it
arranged? What is it paying its crew?
As far as a port state’s prescriptive jurisdiction is concerned the legal issues
arising under this category are the same as those relating to rules on vessel
conditions and vessel operations. The requirement in question will most likely be
framed so that a particular kind of proof (usually a certificate or some kind of
declaration) is available upon arrival in port, meaning that all relevant actions take
place in port from the enforcing authorities’ perspective. However, as the
arrangements supposedly underpinning that piece evidence will most likely have
been undertaken by the shipowner in another jurisdiction there is an extraterritorial
element to such regulations.
236 7 Conclusions
Unlike in the vessel operations context, this extraterritorial element will be

disconnected from the day-to-day operation of the vessel itself. The enforcement
of rules on vessel administration is thus not so straightforward.45 A certificate may
give the appearance that the vessel operator is compliant with the relevant rules, but
there are few practical means available to a port official wishing to confirm this. The
EU’s insurance Directive in particular falls well short of being enforceable in
practice, and could easily be circumvented by an unscrupulous vessel operator
who was minded to do so.
7.4.4 The Substantial Connection Approach
If any middle ground were to be established between the essentially unfettered port
state jurisdiction described above, and port state jurisdiction limited only to the
enforcement of measures agreed to at the international level, then the best hope for
flag states lies in the concept of jurisdiction based on substantial connection.46 This
approach has the ability to make the temporary presence of a vessel within a port
state’s territory just one factor, albeit a significant one, amongst a wider range of
considerations.
The requirements set out in the three pieces of legislation analysed in this book
would not fail a substantial connection test. Indeed, Australia’s Fair Work legisla-
tion is notable for expressly invoking the concept for its application to foreign-
flagged vessels and their crews. The EU’s insurance Directive would arguably be
justified on the basis that vessels should carry this level of insurance in order to
meet any claims for compensation arising out of the vessel’s operations within EU
ports and maritime zones, but would certainly be aided by the fact the insurance
requirement already represents a widely-practised industry standard. Finally,
although it is not expressly stated in its provisions, the background to the United
States’ Cruise Vessel Security and Safety Act clearly shows the cruise industry’s
strong connections with that country.
As the days of flag states’ unquestioned, far-reaching authority over their vessels
even while in foreign ports are long gone, the best option for any parties keen to
limit future extensions of port state jurisdiction may be to promote the substantial
connection approach whenever an international agreement cannot be reached.
Although the application of such an approach will still favour port states in the
sense that the test is undeniably vague and their subjective interpretation of its
requirements may often go unchecked, it could still be the closest thing to an
“internal affairs” rule that flag states are likely to be offered.
45
See Chap. 5, Sect. 5.4.2.1; Chap. 6, Sect. 6.4.2.
46
7.5 Final Remarks 237
7.5 Final Remarks
In the course of analysing the three pieces of legislation at the heart of this book the
author has refrained from giving an opinion on whether these developments were
ultimately “good” or “bad”. Part of the reason for this is that such conclusions will
depend largely on whether one takes the perspective of the industry players affected
by the regulation, or that of the people the regulation was trying to benefit. The
cruise industry and Australia’s vessel owners may well have very different opinions
as to the nature or content of the laws discussed here than a cruise passenger or a
Filipino seafarer working Australia’s coast might. For what it is worth, this author
would prefer to see cruise vessels operated safely for passengers, merchant vessels
properly insured, and seafarers properly paid, but these are hardly contentious
opinions. The real question is whether a port state is prepared to put in the time
and resources necessary to address such issues, when they would traditionally be
left up to flag states to regulate.
At a general level only the most dogmatic of flag state purists would argue that
all unilateral port state measures are bad, especially as some such actions have been
successful in speeding up the development of international law, as with the 2003
EU Regulation regarding double-hulled tankers. Similarly it would be foolish to
claim that all such measures were positive, especially if taken over international
protests at the expense of a potential multilateral solution. Instead scholars in this
field can monitor developments in state practice and other sources of international
law, and gradually try to determine where the limits of port state jurisdiction
might lie.
This author’s conclusions have tended toward an expansive conception of port
state jurisdiction, with states able to continue using their territorial jurisdiction over
visiting vessels to make further incursions into areas that have normally been the
reserve of flag states. At the same time it is likely that we will in time see the
development of “ports of convenience”: just as irresponsible flag states have been
criticised in the past, so too will port states that are not interested in strict regulatory
standards continue to be a magnet for vessel operators that cannot or will not go to
the expense of maintaining their vessels at the levels demanded by more developed
countries.47 This underlies the fact that port state jurisdiction remains for the time
being an option available primarily to powerful and well-resourced states.
It has been said in relation to port state control that it would not be needed but for
irresponsible flag states.48 The same cannot be said for port state jurisdiction more
generally. If port states wish to use their jurisdictional advantage over the flag states
of visiting foreign vessels then there is little that international law will do to stop
them. It is the economic and political constraints upon the use of this regulatory
47
See Molenaar, “Port State Jurisdiction: Towards Comprehensive, Mandatory and Global Cov-
erage” (2007), 246 suggesting that the notion of “responsible port states” might be a helpful basis
for future developments at the international level.
48
Özçayir, Port State Control (2004), 1.
238 7 Conclusions
tool, and not legal rules, that remain the most significant and effective limitation on
the growth of port state jurisdiction, and only some states have the necessary muscle
to “go unilateral” with any real impact.49 Of course smaller states may take smaller
measures, especially where they relate to post-disaster scenarios (such as more
stringent compensation regimes) as opposed to standards that will apply to every
visiting vessel. Either way, the future of merchant shipping regulation is likely to
drift ever further from flag states’ hands.
49
Johnson, Coastal State Regulation of International Shipping (2004), 50, fn 167.
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Table of Cases
Australia
Fair Work Ombudsman v Pocomwell Ltd [2013] FCA 250

Re Maritime Union of Australia (ex parte CSL Pacific Shipping Inc) (2003) 214 CLR 397 (HCA)
Re The Maritime Industry Seagoing Award 1999 (2002) 118 IR 294 (Australian Industrial
Relations Commission)
European Union
Air Transport Association of America v Secretary of State for Energy and Climate Change [2011]
ECJ Case C-366/10
(Opinion of Advocate-General Kokott) [2011] ECJ Case C-366/10
Anklagemyndigheden v Poulsen [1992] ECJ Case C-286/90
Commune de Mesquer v Total France SA and Total International Ltd [2008] ECJ Case C-188/07
Criminal Proceedings against Jean-Claude Arblade [1999] ECJ Case C-369/96
International Fruit Company NV [1972] ECJ Case C-21-24/72
Koelzsch v Luxembourg [2011] ECJ Case C-29/10
Koelzsch v Luxembourg (Opinion of Advocate-General Trstenjak) [2011] ECJ Case C-29/10
Voogsgeerd v Navimer SA [2011] ECJ Case C-384/10
Voogsgeerd v Navimer SA (Opinion of Advocate-General Trstenjak) [2011] ECJ Case C-384/10
The Queen, on the application of International Association of Independent Tanker Owners
(Intertanko) and Others v Secretary of State for Transport [2008] ECJ Case C-308/06
New Zealand
Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA)
258 Table of Cases
International
Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v
United States of America) [1986] ICJ Reports 14 (ICJ)
Nottebohm Case (Second Phase) [1955] ICJ Reports 4 (ICJ)
Saudi Arabia v Arabian American Oil Company (Aramco) (1958) 27 ILR 117
The Lotus (1927) 10 PCIJ Series A 4 (PCIJ)
The MV Saiga (No 2) (1 July 1999) Case 2 (ITLOS)
Singapore
The “Rainbow Joy” [2005] 3 SLR 719 (CA)
United Kingdom
Chalmers v Scopenich (1892) 1 QB 735 (HC Ad)

Chung Chi Cheung v R [1939] AC 160 (PC)
Kuwait Airways Corp v Iraqi Airways Co (No. 6) [2002] 2 AC 883 (HL)
Le Louis (1817) 2 Dods 209; 165 ER 1464 (HC Ad)
R v Anderson (1868) LR 1 CCR 161 (Court for Crown Cases Reserved)
R v Keyn (1876) 2 ExCh Div 63 (Court for Crown Cases Reserved)
Serco Ltd v Lawson [2006] UKHL 3
The Aegean Sea [1998] 2 Lloyd’s Rep 39 (QB)
The Annapolis v The Johanna Stoll (1861) Lush 295; 167 ER 128 (HC Ad)
The Leerort [2001] 2 Lloyd’s Rep 291 (CA)
The Parlement Belge (1880) 5 PD 197 (CA)
The Zollverein (1856) Swab 96; 166 ER 1038 (HC Ad)
United States of America
American Banana Company v United Fruit Company 213 US 347 (1909) (SC)
Armement Deppe SA v United States 399 F 2d 794 (1968) (CA, 5th Circuit)
Benz v Compania Naviera Hidalgo SA 353 US 138 (1957) (SC)
Brown v Duchesne 60 US 183 (1857) (SC)
Canadian Transport Company v United States of America 663 F 2d 1081 (1980) (CA, District of
Columbia Circuit)
Cunard Steamship Co Ltd v Mellon 262 US 100 (1923) (SC)
Equal Opportunity Employment Commission v Arabian American Oil Co 499 US 244 (1991) (SC)
Incres Steamship Co Ltd v International Maritime Workers Union 372 US 24 (1963) (SC)
Jackson v SS Archimedes 275 US 463 (1928) (SC)
Khedivial Line SAE v Seafarers’ International Union 278 F 2d 49 (1960) (CA, 2nd Circuit)
Knott v Botany Mills 179 US 69 (1900) (SC)
Lauritzen v Larsen 345 US 571 (1953) (SC)
McCulloch v Sociedad Nacional de Marineros de Honduras 372 US 10 (1963) (SC)
Table of Cases 259
Murray v Schooner Charming Betsy 6 US 64 (1804) (SC)

Patterson v Bark Eudora 190 US 169 (1903) (SC)
Sandberg v McDonald 248 US 185 (1918) (SC)
Spector v Norwegian Cruise Line Ltd 545 US 119 (2005) (SC)
Strathearn Steamship Co Ltd v Dillon 252 US 348 (1920) (SC)
The Apollon 22 US 362 (1824) (SC)
The Schooner Exchange 11 US 116 (1812) (SC)
United States v Jho 534 F 3d 398 (CA, 5th Circuit)
United States v Locke 529 US 89 (2000) (SC)
United States v Neil 312 F 3d 419 (2002) (CA, 9th Circuit)
United States v Roberts 1 F Supp 2d 601 (1998) (DC, East Louisiana)
United States v Royal Caribbean Cruises Ltd 24 F Supp 2d 155 (1997) (DC, Puerto Rico)
United States v Royal Caribbean Cruises Ltd 11 F Supp 2d 1358 (1998) (DC, South Florida)
Wildenhus’s Case 120 US 1 (1887) (SC)
Table of Legislation
Australia
Acts Interpretation Act 1901

Coastal Trading (Revitalising Australian Shipping) Act 2012
Coastal Trading (Revitalising Australian Shipping) (Consequential Amendments and Transitional
Provisions) Act 2012
Coastal Trading (Revitalising Australian Shipping) Regulations 2012
Commonwealth of Australia Constitution Act 1900
Crimes Act 1914
Fair Work Bill 2008
Fair Work Act 2009
Fair Work Legislation Amendment Regulations 2009 (No 2)
Fair Work Regulations 2009
Great Barrier Reef Marine Park Act 1975
Marine Orders Part 54, Issue 4: Coastal Pilotage (No 10/2006)
Maritime Industry Seagoing Award 1999
Navigation Act 1912
Navigation Act 2012
Navigation (Coasting Trade) Regulations 2007
Protection of the Sea (Civil Liability) Act 1981
Protection of the Sea (Civil Liability) Regulations 1983
Quarantine Act 1908
Seafarers Rehabilitation and Compensation Act 1992
Seagoing Industry Award 2010
Seas and Submerged Lands Act 1973
Shipping Reform (Tax Incentives) Act 2012
Shipping Registration Act 1981
Shipping Registration Amendment (Australian International Shipping Register) Act 2012
Tax Laws Amendment (Shipping Reforms) Act 2012
Workplace Relations Act 1996
Workplace Relations Regulations 2006
262 Table of Legislation
Canada
Canada Marine Act 1998
European Union
Directive 1975/442/EEC of 15 July 1975 on Waste [1975] OJ L194/39

Directive 1996/71/EC of 16 December 1996 concerning the posting of workers in the framework
of the provision of services [1997] OJ L18/1
Directive 1997/70/EC of 11 December 1997 setting up a harmonised safety regime for fishing
vessels of 24 metres in length and over [1998] OJ L34/1
Directive 1999/35/EC of 29 April 1999 on a system of mandatory surveys for the safe operation of
regular ro-ro ferry and high-speed passenger craft services [1999] OJ L138/1
Directive 1999/63/EC of 21 June 1999 concerning the Agreement on the organisation of working
time of seafarers concluded by the European Community Shipowners’ Association (ECSA)
and the Federation of Transport Workers’ Unions in the European Union (FST) [1999] OJ
L167/33
Directive 1999/95/EC of 13 December 1999 concerning the enforcement of provisions in respect
of seafarers’ hours of work on board ships calling at Community ports [2000] OJ L14/29
Directive 2000/59/EC of 27 November 2000 on port reception facilities for ship-generated waste
and cargo residues [2000] OJ L332/81
Directive 2002/59/EC of 27 June 2002 establishing a Community vessel traffic monitoring and
information system and repealing Council Directive 93/75/EC [2002] OJ L208/10
Directive 2003/25/EC of 14 April 2003 on specific stability requirements for ro-ro passenger
ships” [2003] OJ L123/22
content of marine fuels [2005] OJ L191/59
Directive 2005/35/EC of 7 September 2005 on ship-source pollution and on the introduction of
penalties for infringements [2005] OJ L255/11
Directive 2008/101/EC of 19 November 2008 amending Directive 2003/87/EC so as to include
aviation activities in the scheme for greenhouse gas [2009] OJ L8/3
Directive 2008/106/EC of 19 November 2008 on the minimum level of training of seafarers [2008]
OJ L323/33
Directive 2009/13/EC of 16 February 2009 implementing the Agreement concluded by the
European Community Shipowners’ Associations (ECSA) and the European Transport
Workers’ Federation (ETF) on the Maritime Labour Convention, 2006, and amending Direc-
tive 1999/63/EC [2009] OJ L124/30
Directive 2009/15/EC of 23 April 2009 on common rules and standards for ship inspection and
survey organisations and for the relevant activities of maritime administrations [2009] OJ
L47/11
Directive 2009/16/EC of 23 April 2009 on port State control [2009] OJ L131/57
Directive 2009/17/EC of 23 April 2009 amending Directive 2002/59/EC establishing a Commu-
nity vessel traffic monitoring and information system [2009] OJ L131/101
Directive 2009/18/EC of 23 April 2009 establishing the fundamental principles governing the
investigation of accidents in the maritime transport sector and amending Council Directive
1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council [2009]
OJ L131/114
Directive 2009/20/EC of 23 April 2009 on the insurance of shipowners for maritime claims [2009]
OJ L131/128
Table of Legislation 263
Directive 2009/21/EC of 23 April 2009 on compliance with flag State requirements [2009] OJ
L131/132
Directive 2009/45/EC of 6 May 2009 on safety rules and standards for passenger ships [2009] OJ
L163/1
Regulation No 391/2009 of 23 April 2009 on common rules and standards for ship inspection and
survey organisations [2009] OJ L131/11
Regulation No 392/2009 of 23 April 2009 on the liability of carriers of passengers by sea in the
event of accidents [2009] OJ L131/24
Regulation No 417/2002 of 18 February 2002 on the accelerated phasing-in of double hull or
equivalent design requirements for single hull oil tankers and repealing Council Regulation
(EC) No 2978/94 [2002] OJ L61/1
Regulation No 593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I)
Regulation No 864/2007 of 11 July 2007 on the law applicable to non-contractual obligations
(Rome II)
accelerated phasing-in of double hull or equivalent design requirements for single hull oil
tankers [2003] OJ L249/1
Regulation No 3577/1992 of 7 December 1992 applying the principle of freedom to provide
services to maritime transport within Member States (maritime cabotage) [1992] OJ L364/7
France
Code des Transports
Gibraltar
Gibraltar Merchant Shipping (Insurance for Maritime Claims) Regulations 2012 (LN 2012/026)
Ireland
European Union (Insurance of Shipowners for Maritime Claims) Regulations 2011 (SI 686/2011)
Malta
Merchant Shipping (Insurance for Maritime Claims) Regulations 2011 (LN 484/2011)
264 Table of Legislation
New Zealand
Biosecurity Act 1993

Customs and Excise Act 1996
Food Act 1981
Hazardous Substances and New Organisms Act 1996
Health Act 1956
Immigration Act 2009
Income Tax Act 2007
Law Reform Act 1936
Marine Protection Rules Part 102 – Certificates of Insurance (30 December 2004)
Maritime Transport Act 1994
Maritime Transport (Certificate of Insurance) Regulations 2005
Medicines Act 1981
Navigation Safety Bylaw 2009 (Environment Waikato)
Trade in Endangered Species Act 1989
United Kingdom
Merchant Shipping Act 1854, 17 & 18 Vic, c 104

Merchant Shipping Act 1906, 6 & 7 Edw, c 48
Merchant Shipping Act 1995
Oil in Navigable Waters Act 1922, 12 & 13 Geo 5, c 39
The Merchant Shipping (Compulsory Insurance: Ships Receiving Trans-shipped Fish) Regulations
1998 (SI 1998/209)
The Merchant Shipping (Reporting Requirements for Ships Carrying Dangerous or Polluting
Goods) Regulations 1995 (SI 1995/2498)
United States of America
Americans with Disabilities Act 1990 (Public Law 101-646)

Cruise Vessel Security and Safety Act 2008 (House of Representatives Bill 110-6408)
Cruise Vessel Security and Safety Act 2008 (Senate Bill 110-3204)
Cruise Vessel Security and Safety Act 2009 (Senate Bill 111-588)
Cruise Vessel Security and Safety Act 2010 (Public Law 111-207)
Deepwater Port Act 1974 (Public Law 93-627)
Merchant Marine Act 1920 (Public Law 66-261)
National Invasive Species Act 1996 (Public Law 104-332)
Nonindigenous Aquatic Nuisance Prevention and Control Act 1990 (Public Law 101-646)
Oil Pollution Act 1924 (Public Law 68-238)
Oil Pollution Act 1990 (Public Law 101-380)
Shipping Act 1916 (Public Law 64-260)
Water Pollution Prevention and Control Act 1972 (Public Law 92-500)
Table of International Agreements
Agreement Concerning Specific Stability Requirements for Ro-Ro Passenger Ships Undertaking
Regular Scheduled International Voyages Between or To or From Designated Ports in North
West Europe and the Baltic sea (adopted 28 February 1996, entered into force 1 April 1997)
Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and
Unregulated Fishing (adopted 22 November 2009, not yet in force)
Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (adopted
13 December 1974, entered into force 28 April 1987)
Constitution of the International Labour Organisation (adopted 1 April 1919, entered into force
28 June 1919)
Convention and Statute on the International Regime of Maritime Ports (adopted 9 December 1923,
entered into force 26 July 1926)
Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific (adopted
24 November 1989, entered into force 17 May 1991)
Convention for the Safety of Life at Sea (adopted 20 January 1914, did not enter into force)
Convention for the Unification of Certain Rules for International Carriage by Air (adopted 28 May
1999, entered into force 4 November 2003)
Convention on Limitation of Liability for Maritime Claims (adopted 19 November 1976, entered
into force 1 December 1986)
Convention on the High Seas (adopted 29 April 1958, entered into force 30 September 1962)
Convention on the International Maritime Organization (IMO) (adopted 6 March 1948, entered
into force 17 March 1958)
Convention on the International Regulations for Preventing Collisions at Sea (adopted 20 October
1972, entered into force 15 July 1977)
Convention on the Liability of Operators of Nuclear Ships (adopted 25 May 1962, did not enter
into force)
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
(adopted 13 November 1972, entered into force 30 August 1975)
Friendship, Commerce and Navigation: Treaty and Protocol between the United States of America
and Japan (adopted 2 April 1953, entered into force 30 October 1953)
General Agreement on Tariffs and Trade (adopted 30 October 1947, entered into force 1 January
1948)
International Convention for the Control and Management of Ships’ Ballast Water and Sediments
(adopted 13 February 2004, not yet in force)
International Convention for the Safety of Life at Sea (SOLAS) (adopted 1 November 1974,
entered into force 25 May 1980)
International Convention for the Unification of Certain Rules Concerning Civil Jurisdiction in
matters of Collision (adopted 10 May 1952, entered into force 14 September 1955)
266 Table of International Agreements
International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in
matters of Collisions or other Incidents of Navigation (adopted 10 May 1952, entered into force
20 November 1955)
International Convention on Arrest of Ships (adopted 12 March 1999, entered into force
14 September 2011)
International Convention on Civil Liability for Bunker Oil Pollution Damage (adopted 23 March
2001, entered into force 21 November 2008)
International Convention on Civil Liability for Oil Pollution Damage (adopted 29 November 1969,
entered into force 19 June 1975)
(adopted 3 May 1996 and 30 April 2010 respectively, not yet in force)
International Convention on Load Lines (adopted 5 April 1966, entered into force 21 July 1968)
International Convention on Standards of Training, Certification and Watchkeeping for Seafarers
(STCW) (adopted 7 July 1978, entered into force 28 April 1984)
International Convention on the Control of Harmful Anti-fouling Systems on Ships (adopted
5 October 2001, entered into force 17 September 2008)
International Convention on the Prevention of Pollution from Ships 1973 as modified by the
Protocol of 1978 relating thereto (MARPOL) (adopted 2 November 1973 and 17 February
1978 respectively, entered into force 2 October 1983)
International Convention on the Prevention of Pollution of the Sea by Oil (adopted 12 May 1954,
entered into force 26 July 1958)
International Convention on Tonnage Measurement of Ships (adopted 23 June 1969, entered into
force 18 July 1982)
International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution
Casualties (adopted 29 November 1969, entered into force 6 May 1975)
International Convention Relating to the Arrest of Sea-Going Ships (adopted 10 May 1952,
entered into force 24 February 1956)
Latin American Agreement on Port State Control (Viña del Mar Agreement) (adopted 5 November
1992)
Maritime Labour Convention (adopted 23 February 2006, enters into force 20 August 2013)
Marrakesh Agreement Establishing the World Trade Organization, including the General Agree-
ment on Tariffs in Trade and General Agreement on Trade in Services (adopted 15 April 1994,
entered into force 1 January 1995)
Memorandum of Understanding between Certain Maritime Authorities on the Maintenance of
Standards on Merchant Ships (adopted 2 March 1978, did not enter into force)
Memorandum of Understanding on Port State Control in the Asia-Pacific Region (Tokyo MoU)
(adopted 1 December 1993)
Memorandum of Understanding on Port State Control in the Black Sea Region (adopted 7 April
2000)
Memorandum of Understanding on Port State Control in the Caribbean Region (adopted 9 Febru-
ary 1996)
Memorandum of Understanding on Port State Control in the Mediterranean Region (adopted
11 July 1997)
Memorandum of Understanding on Port State Control for the Indian Ocean Region (adopted
22 October 1999)
Memorandum of Understanding on Port State Control for the West and Central African Region
(adopted 5 June 1998)
Merchant Shipping (Minimum Standards) Convention (adopted 29 October 1976, entered into
force 28 November 1981)
Nairobi International Convention on the Removal of Wrecks (adopted 18 May 2007, not yet in
force)
Table of International Agreements 267
Paris Memorandum of Understanding on Port State Control (adopted 26 January 1982, entered into
force 1 July 1982)
Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims of
19 November 1976 (adopted 3 May 1996, entered into force 13 May 2004)
Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their
Luggage by Sea (adopted 1 November 2002, not yet in force)
Riyadah Memorandum of Understanding on Port State Control in the Gulf Region (adopted
30 June 2004)
Rome Convention of 1980 on the law applicable to contractual obligations (consolidated version)
[1998] OJ C27/34
Seafarers’ Wages, Hours of Work and the Manning of Ships Convention (ILO Convention
180, adopted 22 October 1996, entered into force 8 August 2002)
Treaty Establishing the European Community (consolidated version) [2006] OJ C321E/1
Treaty on European Union and the Treaty on the Functioning of the European Union (consolidated
version) [2010] OJ C83/1
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force
16 November 1994)
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January
1980)
Wages, Hours of Work and Manning (Sea) Convention (ILO Convention 109, adopted 29 June
1946, did not enter into force)
Wages, Hours of Work and Manning (Sea) Recommendation (ILO Recommendation 109, 14 May
1958)
Index
A Environmental regulations, 6, 44–45, 53,

Abuse of rights, 11–12, 79, 98, 99, 151, 190, 212 107, 133, 225
Air Transport Association of America Erika reforms, 117–119
decision, 107, 112 Exclusive Economic Zone, 18–19, 88, 89, 188
Archipelagic waters, 19
Arrest of vessels, 100
F
Fisheries law, 33, 103
Flag states
B
criticisms of, 93, 231
Ballast water regulations, 99–100
international registers, 43, 165, 182
jurisdiction over vessels, 1, 14–15, 67, 80,
85, 86, 89, 110, 150, 167–168, 185, 189,
C 190, 216–217
Cabotage restrictions, 99, 162–163, 176–177, role of, 228–231, 237–238
183–184, 191, 199–202 Flags of convenience, 42–44, 163–164,
CDEM standards, 17, 57, 60, 88 219–220
Coastal state jurisdiction, 1, 15–20, 56–58.
See also Port state jurisdiction
Contiguous zone, 18 G
Continental shelf, 20, 188 Genuine link concept, 43, 211
Convention and Statute on the International Good faith, 11–12, 79, 151, 190
Regime of Maritime Ports, 33–34
Cruise industry, 63–66, 70–72, 152
H
High seas, 15, 19, 22, 62, 67, 80, 85, 86, 89–90,
99, 101, 107, 110, 114, 188–189
D
Host state concept, 217–218
Discrimination, 11, 34, 79, 98, 99, 151, 190, 199
Distress, vessels in, 27–28, 34
Double hull requirement, 53, 133, 226, 227 I
Innocent passage, 16–18, 186–187. See also
United Nations Convention on the Law
E of the Sea (UNCLOS), article 21
Employment regulations, 161–162, 164–166, Insurance
169–170, 177–178, 192–199 adequacy of, 154–158
minimum wage, 179–180 compulsory, 119, 124–126, 136–137, 156,
working hours, 178–179 229–230
270 Index
Insurance (cont.) of convenience, 237

direct action, right of, 120, 147–148 right of access, 31–35
protection and indemnity (P&I), 121–123 traditional interests, 38, 49–50, 59, 224
war risks, 146 Port entry conditions, 65, 97–111, 196, 233–235
Internal affairs approach, 26, 28–31, 192–195 Port state control, 4, 46–49, 79, 123, 142,
Internal waters, 14, 16, 17, 20, 22, 24, 25, 35, 87 154, 157–159
International Maritime Organization, 44, 51, Port state jurisdiction
79, 134–135, 148, 199 basic legal position, 25–26, 35
International Safety Management Code, 149 coastal state jurisdiction, distinguished
from, 1, 2, 5, 15, 24–25, 35, 49, 56–58,
62, 87, 90, 130–131, 185–192, 224
J employment regulations, 192–195
Jurisdiction internal waters, connection with
concurrent, 13–14, 213 jurisdiction over 22, 24, 87
effects doctrine, 11, 93–95 international agreements, relationship
extraterritorial, 10, 61–62, 74, 84–86, with, 134–135
92–97, 114, 196, 200–201, 233 limitations to, 26–28, 80–81
generally, 7–8 older examples, 226–227
nationality principle, 9–10, 14–15 territorial jurisdiction, connection with,
over shipboard crimes, 59, 66–68 22, 35, 101
passive personality, 10, 59, 94 Private international law, 101, 166–167,
protective/security principle, 10, 95–96, 211 202–210, 214–216
substantial connection approach, 13, 96–97, Proportionality, 12–13, 104, 106, 107, 199, 234
210–220, 236 Protests, diplomatic, 115, 190, 195, 220, 228–230
territorial principle, 8–9
universal, 10
S
Safety regulations, 6, 38–42, 53, 69
L Sellers decision, 79–82
Limitation of liability, 119, 120, 126–129, Sovereign immunity, 27
137–139 Spector decision, 31, 70–71, 78
Lotus decision, 9, 92–93 Straits, international, 19, 105
Substantial connection approach.
See Jurisdiction
M
Maritime Labour Convention, 149–150, 168,
198, 230–231 T
Multilateral cooperation, 51–52 Territorial sea, 2, 14, 16–18, 20, 22, 35,
88–90, 131, 186. See also United
Nations Convention on the Law
N of the Sea (UNCLOS), article 21
No more favourable treatment clauses, 49
U
O United Nations Convention on the Law
Oil record book offences, 94, 107, 111, 233 of the Sea (UNCLOS)
article 21, 17, 56–57, 75–77, 80, 88,
131–133, 202
P article 25, 97–98, 102, 110
Pilotage regulations, 99, 105–106, 112–113, article 218, 2–3, 90, 91, 102, 104, 110
227, 230 and jurisdiction over vessels, 2, 14, 25, 45,
Port(s), 20–25 57, 80, 82, 87–92, 114, 220, 223
deepwater, 22 Unilateral regulations, 4–5, 48, 52, 55–56, 133,
economic interests, 23–24, 33, 38, 45, 54–55 168–171, 225, 226, 237–238
Index 271
V Vessel operations, 61–62, 69, 82–84, 195–197,

Vessel administration, 62, 69, 148–154, 225, 233–235
197–199, 225, 235–236 Vessel reporting regulations, 106–107
Vessel conditions, 59–60, 68–69, 78–79, 194,
225, 232–233
About the International Max Planck Research
School for Maritime Affairs at the University
of Hamburg
The International Max Planck Research School for Maritime Affairs at the Univer-
sity of Hamburg was established by the Max Planck Society for the Advancement
of Science, in co-operation with the Max Planck Institute for Foreign Private Law
and Private International Law (Hamburg), the Max Planck Institute for Compara-
tive Foreign Public Law and International Law (Heidelberg), the Max Planck
Institute for Meteorology (Hamburg) and the University of Hamburg. The School’s
research is focused on the legal, economic, and geophysical aspects of the use,
protection, and organization of the oceans. Its researchers work in the fields of law,
economics, and natural sciences. The School provides extensive research capacities
as well as its own teaching curriculum. Currently, the School has 22 Directors who
determine the general work of the School, act as supervisors for dissertations, elect
applicants for the School’s PhD-grants, and are the editors of this book series:
Prof. Dr. Dr. h.c. mult. Jürgen Basedow is Director of the Max Planck Institute
for Foreign Private Law and Private International Law; President and Professor
Monika Breuch-Moritz is the President of the German Federal Maritime and
Hydrographic Agency; Prof. Dr. Dr. h.c. Peter Ehlers is the Director ret. of the
German Federal Maritime and Hydrographic Agency; Prof. Dr. Dr. h.c. Hartmut
Graßl is Director emeritus of the Max Planck Institute for Meteorology;
Dr. Tatiana Ilyina is the Leader of the Research Group “Ocean Biogeochemistry”
at the Max Planck Institute for Meteorology in Hamburg; Prof. Dr. Florian Jeßberger
is Head of the International and Comparative Criminal Law Division at the Univer-
sity of Hamburg; Prof. Dr. Lars Kaleschke is Junior Professor at the Institute of
Oceanography of the University of Hamburg; Prof. Dr. Hans-Joachim Koch is
Director emeritus of the Seminar of Environmental Law at the University of
Hamburg; Prof. Dr. Robert Koch is Director of the Institute of Insurance Law at
the University of Hamburg; Prof. Dr. Doris König is the President of the Bucerius
Law School; Prof. Dr. Rainer Lagoni is Director emeritus of the Institute of
Maritime Law and the Law of the Sea at the University of Hamburg; Prof.
Dr. Gerhard Lammel is Senior Scientist and Lecturer at the Max Planck Institute
for Chemistry, Mainz; Prof. Dr. Ulrich Magnus is Managing Director of the
Seminar of Foreign Law and Private International Law at the University of
274 About the International Max Planck Research School for Maritime Affairs. . .
Hamburg; Prof. Dr. Peter Mankowski is Director of the Seminar of Foreign and
Private International Law at the University of Hamburg; Prof. Stefan Oeter is
Managing Director of the Institute for International Affairs at the University of
Hamburg; Prof. Dr. Marian Paschke is Managing Director of the Institute of
Maritime Law and the Law of the Sea at the University of Hamburg; PD
Dr. Thomas Pohlmann is Senior Scientist at the Centre for Marine and Climate
Research and Member of the Institute of Oceanography at the University of
Hamburg; Dr. Uwe A. Schneider is Assistant Professor at the Research Unit
Sustainability and Global Change of the University of Hamburg; Prof. Dr. Detlef
Stammer is Professor in Physical Oceanography and Remote Sensing at the Institute
of Oceanography of the University of Hamburg; Prof. Dr. Jürgen Sündermann is
Director emeritus of the Centre for Marine and Climate Research at the University
of Hamburg; Prof. Dr. Rüdiger Wolfrum is Director emeritus at the Max Planck
Institute for Comparative Foreign Public Law and International Law and a judge at
the International Tribunal for the Law of the Sea; Prof. Dr. Wilfried Zahel is
Professor emeritus at the Centre for Marine and Climate Research of the University
of Hamburg.
At present, Prof. Dr. Dr. h.c. Jürgen Basedow and Prof. Dr. Ulrich Magnus
serve as speakers of the Research School.

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International Max Planck Research School for Maritime Affairs

For further volumes:

Port State Jurisdiction and the

ISSN 1614-2462 ISSN 1867-9587 (electronic)

© Springer International Publishing Switzerland 2014

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)

MLC Maritime Labour Convention

3 The Growth of Port State Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 37

5.2 Measure Based on Port State Jurisdiction? . . . . . . . . . . . . . . . . . . 129

1.1 Why “Port State Jurisdiction”?

B. Marten, Port State Jurisdiction and the Regulation of International Merchant 1

level of jurisdiction that ought to be exercised by the respective players, and in

1.2 An Unlikely Trio

2.1 The Concept of Jurisdiction

In public international law terms jurisdiction is an aspect of state sovereignty,2

B. Marten, Port State Jurisdiction and the Regulation of International Merchant 7

2.1.1 Territorial Jurisdiction

There is no doubt as to the power of a state to exercise both prescriptive and

2.1.2 Jurisdiction Over Nationals

Another widely-exercised basis of jurisdiction is that of nationality,14 which states

2.1.3 Extraterritorial Jurisdiction

In addition to the extraterritorial application of a state’s laws to its own nationals,

2.1.4 General Limits on States’ Prescriptive Jurisdiction

2.1.4.2 Good Faith and Abuse of Rights

Article 300 of UNCLOS provides that:

This refers to two well-established, though somewhat nebulous, aspects of

context.38 In the context of port state jurisdiction arguments based on

2.1.4.4 Key Points on Jurisdiction

2.2 Jurisdiction Over Vessels Under UNCLOS

2.2.1 Flag State Jurisdiction

UNCLOS also contains a number of provisions on the exercise of flag state

purposes,50 although the concept is distinct from that applying to individuals.51

2.2.2 Coastal State Jurisdiction

2.2.2.1 Internal Waters

The determination of a state’s internal waters is by reference to the baselines

2.2.2.2 The Territorial Sea

The innocent passage provisions of UNCLOS essentially allow foreign vessels

The obligations of coastal states in relation to vessels exercising the right of

The duty not to hamper innocent passage is also reinforced in relation to

2.2.2.3 The Contiguous Zone

The contiguous zone is essentially an additional 12 nautical miles beyond the

2.2.2.4 The Exclusive Economic Zone

2.2.2.5 International Straits

2.2.2.6 Archipelagic Waters

2.2.2.7 Waters Above the Continental Shelf

2.3 What Is a Port?

2.3.1 Defining “Port”

Lloyd’s Dictionary of Shipping Terms defines “port” as a “harbour having facilities

2.3.2 Ports and Territorial Jurisdiction

2.3.3 The Practicalities of Ports

2.4 Jurisdiction Over Vessels in Port

2.4.1 Basic Position

2.4.2 Convention-Based Limitations

Perhaps unsurprisingly, port states have been reluctant to incorporate express

2.4.3 Other Limitations

2.4.3.1 Sovereign Immunity

2.4.3.2 Vessels in Distress