Flag State Duties and

Responsibilities

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 Outline
Introduction
Flag as symbol of nationality
Ship Registration
Issues of Nationality of Ships:
– Concept of nationality
– Right to grant nationality
– Proof of nationality
– Attribution of nationality
– Legal significance of nationality
– Limitations on grant of nationality
– Dual Nationality

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 Flag State Responsibility
Flag State Duties:
– Administrative
– Social
– Technical
Effective Flag State control

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 Introduction
UNCTAD Review of Maritime Transport 2015
– Over 50,000 ships
– Over 1 million seafarers
– 10 thousand million tonnes carried annually
– Distance of 5 million miles
– $380 billion in freight rates
– 1.175 billion gross tons registered in over 150 flag states
– 20 largest flag states account for 87% of world tonnage.

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 Duties of Flag States under Art 94 of LOSC
Article 94 of the LOSC duties of flag states
Article 94(1) of LOSC: ‘Every State shall effectively
exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag.’
Article 94(2) – register ships; enact domestic legislation
Article 94(3) of LOSC imposes obligations on flag States
to ensure safety at sea

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 • Article 94(4)(a) ensures seaworthiness by proper, regular
inspections and surveys
• Article 94(4)(b) ensure safety at sea by properly trained
officers and crew
• Article 94(4)(c) officers and crew conversant with
international regulations
• Article 94(5) – conform to generally accepted
international regulations, procedures and practices

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 Flag as Symbol of Nationality

• “nail our colours to the masthead” to symbolise

determination not to surrender,
• “sail under false colours” to give a false impression,
• “come in with flying colours”, (success),
• “strike the flag” to surrender,
• “fly the flag at half mast” for mourning.

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 Red Ensign

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 Order in Council in 1864 that decreed that the white ensign
was restricted to naval ships, the blue to ships in
Government or public service and ships in the naval
reserve, and the senior naval flag, the red ensign, to
merchant ships.
Merchant Shipping Act of 1894 declared that, for all
merchant ships belonging to a British subject, the proper
national colours were the red ensign

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 Ship Registration
• Tonnage
– a levy, introduced in 1302 upon each cask of wine or ‘tun’ imported
into England
– to meet the cost of protecting convoys, taxes known as ‘tunnage’ were
raised.
– The measurement of tonnage evolved over time into a measurement
of the internal volume of the ship in terms of 100 cubic feet to the ton.
– measure of gross tons became inextricably linked with the register of
the ship which records these tonnages for reference by all of those
who impose levies and taxes upon ships
– Tonnage Convention 1969

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 • Registration
– Navigation Act 1660 first required ships to be
registered and also excluded foreign built ships
unless the English owner could prove his nationality
– Upon compliance with these requirements a
certificate was issued and a register of all such
certificates was maintained by Customs at London.

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 – Over the next two centuries further Acts consolidated
requirements under ship registration regarding
• ownership,
• marking of the ship’s name and port of registry,
• transfer of ownership,
• proof of location of build,
• tonnage,
• record of identity
• changes of master and
• provision of a unique registration number

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 • Mercantile Marine Act, 1850
• Merchant Shipping Act, 1854
• Merchant Shipping Act 1872
• Merchant Shipping Act, 1873
• Merchant Shipping Act, 1875
• Imperial Merchant Shipping Act, 1894
• The Merchant Shipping Act, 1988
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 • High Seas Convention, 1958 Article 5
– Each State shall fix the conditions for the grant of its nationality to
ships, for the registration of ships in its territory, and for the right
to fly its flag. Ships have the nationality of the State whose flag
they are entitled to fly. There must exist a genuine link between
the State and the ship; in particular, the State must effectively
exercise its jurisdiction and control in administrative, technical
and social matters over ships flying its flag.
– Each State shall issue to ships to which it has granted the right to
fly its flag documents to that effect.

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 • LOSC Article 91 – Nationality of Ships
– Each State shall fix the conditions for the grant of its
nationality to ships, for the registration of ships in its territory,
and for the right to fly its flag.

• LOSC Article 94
– ‘effectively exercise its jurisdiction and control in
administrative, technical and social matters over ships flying
its flag’

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 • United Nations Convention on the Conditions
for Registration of Ships 1986
– Its provisions include references to the genuine
link, ownership, management, registration,
accountability and the role of the flag state.

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 Registration In Australian Law
• Shipping Registration Act 1981
– Section 12 - Obligation to register Australian-owned ships
• (1) Subject to this Part, every Australian-owned ship shall be registered
except ships less than 24 metres in tonnage length, Government ships,
fishing vessels and pleasure craft.
• Shipping Registration Regulations 1981
– Reg 7 must state the following information:
• (a) the type of the ship (in terms of its purpose);
• (b) the method of propelling the ship;
• (c) the overall length of the ship;
• (d) the principal material used in constructing the hull of the ship;
• (e) 3 proposed names for the ship, in order of preference of the names;

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 • (f) the proposed home port of the ship;
• (g) the International Maritime Organization (IMO) number of the ship;
• (h) if the ship has been registered in Australia or overseas:
– (i) the year in which the ship was last registered; and
– (ii) the register on which the ship was registered; and
– (iii) the official number of the ship; and
– (iv) the registered name of the ship; and
– (v) the home port, or port of registry, of the ship;
• (i) if the ship has not been registered in Australia:
– (i) the name of the builder of the ship; and
– (ii) the place where the ship was built; and
– (iii) the builder’s identification of the ship or the name (if any) by which the
ship is known.

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 • Reg 7A lists the required supporting documents:
– (1) An applicant for registration must lodge the following
documents with the Registrar:
• (a) a written notice stating the name and address of the person who
is to be the registered agent of the ship, that is signed by:
– (i) the ship’s owner; and
– (ii) if the owner is not to be the registered agent—the person who is to be
the registered agent;
• (b) evidence in accordance with regulation 20 that the ship has
been marked in accordance with that regulation with marks
directed by the Registrar under subsection 26 (1) of the Act;

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 • (c) if the registration of the ship depends on the ship
being a ship on demise charter to an Australian based
operator—a copy of the charter party;
• (d) a certificate relating to the tonnage measurement of
the ship issued under, or otherwise having effect
because of, the Navigation Act;
• (e) the identification document
• (f) the ownership documents;
• (g) a declaration of ownership and nationality

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 • Section 19 Grant of registration certificate
– (1) Upon the registration of a ship in the General Register or International Register,
the Registrar must grant a registration certificate for the ship.
– (2) The registration certificate must:
• (a) be in the prescribed form; and
• (b) contain the particulars relating to the ship that were entered in the relevant register; and
• (c) contain such other matters as are prescribed
• Section 20 Custody of registration certificate
– (1) The registration certificate of a ship shall not be used except for the purpose of
the lawful navigation of the ship,
– (2) A person having possession or control of a registration certificate shall not fail to
deliver the certificate on demand to the person entitled to the custody of it for the
purposes of the lawful navigation of the ship, or to the Registrar, a Deputy Registrar, a
proper officer or any other person entitled by law to require its delivery.

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 • Section 29 Certain ships to have Australian nationality
– (1) The following ships shall, for all purposes, be taken to be Australian ships and to have Australian
nationality:
• (a) registered ships;
• (b) unregistered ships (other than ships required to be registered), being:
– (i) Australian-owned ships referred to in section 13;
– (ii) ships wholly owned by residents of Australia or by residents of Australia and Australian nationals;
or
– (iii) ships operated solely by residents of Australia or Australian nationals or both.
• Section 30 National colours and other flags
– (1) It is hereby declared that the national colours for Australian ships are:
• (a) in the case of ships registered by virtue of section 12 or ships—the red ensign; and
• (b) in any other case—the national flag and the red ensign.
– (2) When in waters outside Australian waters:
• (a) a ship to which paragraph (1)(a) applies may at any time, and shall as and when required by the regulations, fly the red
ensign.

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 • Registration and Warfare
– Registration assumes great importance in times of
war when a State may need to requisition ships for
carriage of wartime materials and personnel
– STUFT (ships taken up from trade)
– Falklands War – QE 2 requisitioned.

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 Issues of Nationality of Ships

• The Concept of Nationality

– By flying a flag, vessels demonstrated to all others under
whose protection they sailed – this signalling of nationality
was of significance as a protection against piracy or attack by
vessels of another, or even one’s own, sovereign
– the authority exercised by the flag State over its vessels whilst
these vessels were on the high seas made the flag State
principles the linchpin of public order on the high seas
– The Lotus (Permanent Court of International Justice)1927

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 • The Right to Grant Nationality
– Every State has the right under international law to
grant its nationality to ships and, as a consequence,
the privilege of flying the flag of the State
– Article 5(2) of the 1958 Convention on the High Seas
(HSC); Article 91(2) of the LOSC; Article 11 of the 1986
Convention on Conditions for the Registration of Ships

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 • Landlocked States
– The right of landlocked States to a maritime flag was finally
recognised in Article 273 of the Versailles Peace Treaty, 1919
– Declaration Recognising the Right of a Flag of States Having
No Sea-Coast, signed in Barcelona in 1921
– Article 4 of the HSC, Article 90 of the LOSC and Article 4(1)
of the 1986 Convention on Conditions for the Registration of
Ships

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 • Proof of Nationality
– the national flag flown (the ensign) is prima facie
evidence of nationality
– Article 110 of the LOSC
– SOLAS - display their IMO number in large conspicuous
and permanently affixed letters and to carry a
Continuous Synoptic Record of, amongst other things,
their ownership and nationality

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 • The Attribution of Nationality
– each State decides for itself the basis upon which it will its
nationality to ships
– Muscat Dhows Case (1908):‘Generally speaking it belongs to
every sovereign to decide to whom he will accord the right to fly
his flag and to prescribe the rules governing such grants’
– Lauritzen v. Larsen "the most venerable and universal law is that
which gives cardinal importance to the law of the flag. Each state
under international law may determine…the conditions on which
it will grant its nationality to a merchant ship, thereby accepting
responsibility for it and acquiring authority over it."
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 • The Legal Significance of Nationality
– A State has the right to come to the defence of vessels flying its
flag
– the right of the flag State to pursue claims concerning its ships
– State has exclusive jurisdiction over vessels flying its flag while
these vessels are sailing upon the high seas (Article 92 (1) LOSC)
– The flag State’s law regulates all aspects of life aboard a vessel
and all operations of the vessel upon the high seas
– M. Isaacs and Sons v. William McAllum & Co (1921)

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 • Limitations on the Grant of Nationality, and the
‘Genuine Link’
– a State may not grant its nationality to a ship which
already possesses the nationality of another State
– There must be a ‘genuine link’ between the flag State and
the vessel
– Nottebohm Case

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 “Although it is for Liechtenstein, as it is for every
sovereign state, to settle by its own legislation the
rules relating to the acquisition of its nationality . .
nevertheless a State cannot claim that its rules are
entitled to recognition by another State, unless . . .
there is a genuine connection in existence and a real
and effective link between Nottebohm and
Liechtenstein
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 • without a genuine link, ‘flags of convenience’ would
facilitate the use of unsafe and undermanned vessels.
• Article 5(1) of the HSC :
– ‘there must exist a genuine link between the State and
the ship; in particular, the State must effectively
exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag’

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 • Recommendation No. 108 of the International Labour Organisation
(ILO) concerning Social Conditions and Safety of Seafarers in Relation
to Registration of Ships, 1958

• Article 91(1) of the LOSC

Ships have the nationality of the State whose flag they are
entitled to fly. There must exist a genuine link between the State
and the ship.

• ILO Convention 147 – Minimum Standards in Merchant Ships (1976)

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 • United Nations Convention on Conditions for the Registration of
Ships, 1986.
– Article 5 will require each flag State to have a national maritime
administration adequate to implement applicable international rules and
standards.
– Moreover, the flag State will be obligated either to possess an ownership
interest or to require the possession of such an interest by its nationals
(Article 8), or
– a level of manning by its nationals or persons in permanent residence in
the flag State (Article 9) sufficient to permit that State to exercise
effectively its jurisdiction and control over ships flying its flag.

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 • Stateless Vessels
– any State may have jurisdiction over a stateless ship- Art 110
– most likely to be found in the areas of piracy, illegal fishing and the trade in drugs
and illegal immigrants
• United States v Marino-Garcia (1982)
– three possible origins
• absence of a genuine link between the flag State and the vessel
• a ship which persistently abuses the conditions under which it is granted a
flag may be viewed as stateless because of its abuse of its national flag
• a ship will be deemed not to have nationality if the attempt to grant
nationality is made by an unrecognised State (Naim Nolvan v. Attorney
General for Palestine, (1948) – Vessel Asya

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 • Dual Nationality
– Article 92(1) of the LOSC states inter alia that:
• Ships 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.
• exceptions provided for of ships flying the flag of the United Nations,
its specialised agencies and the International Atomic Energy Agency
• Section 17, Ship Registration Act 1981 (Commonwealth).

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 • Sovereign Immunity
– certain categories of vessels – military vessels and
government owned ships used exclusively for
governmental and non-commercial service – are immune
in varying degrees from action or suit by other States.
(Articles 32, 96 and 236 of the LOSC)

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 Flag State Responsibility
• Flag State Responsibility
– International Law Commission (1956):
“The absence of any authority over ships sailing the high seas would
lead to chaos. One of the essential adjuncts to the principle of
freedom of the seas is that a ship must fly the flag of a single State and
that it is subject to the jurisdiction of that State.”
– The international regulation of ships agreed upon by the member States
of the IMO and the ILO is brought into effect through the national law of
those States and “transforming these universally accepted goals and
rules into a binding legal obligation is each State’s sovereign privilege”

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 • This privilege brings with it the freedom to act, but also,
with it freedom simpliciter, the freedom not to act.
Regulatory inefficient flag States can choose to exercise
the freedom not to act.
• A fundamental issue in effective flag State responsibility is
the will and ability of flag States to provide the necessary
maritime infrastructure and legal capability to administer
and enforce the applicable laws they have enacted.

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 • ICS Report 2001:
– There were constant demands for nations registering ships to be held more
accountable in performance of their responsibilities. A major concern was the
inability of a significant number of registers to provide adequate legal and
administrative infrastructure to meet their obligations in international law, in
particular the United Nations Convention on the Law of the Sea, 1982…A
general consensus is that there are sufficient regulations to do the job, the
problem is their lack of implementation. Major reasons stated for the failure to
implement the necessary measures were the lack of competent personnel and
financial resources, and a lack of political will in many cases…There was a
widespread view throughout the Commission’s inquiry that the IMO’s work on
flag State performance has been largely ineffective.

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 Flag State Duties

• Administrative Duties (Art 94(2)& SOLAS Art 1(b))

– maintain a register of ships containing the names and
particulars of ships flying its flag, except those which are
excluded from generally accepted international
regulations on account of their small size; and
– 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
ship.

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 • Mandatory reporting requirements
– MARPOL Art 11
– MARPOL Art 12 – investigate casualties
– SOLAS - Chapter 1 Part C
– Delegation of flag state duties to Recognised Organisations
• Duty to Conduct Marine Investigations and Hold Marine
Enquiries
• Duty to Take Enforcement Action against Ships for
Violations

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 • Social Duties
– every State to assume jurisdiction under its internal law
over each ship flying its flag and its master, officers and
crew in respect of social matters concerning the ship.
– LOSC requires each State to take such measures for ships
flying its flag as are necessary to ensure safety at sea with
regard to: “…the manning of ships, labour conditions and
the training of crews, taking into account the applicable
international instruments.”

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 – States are required to conform to generally
accepted international regulations, procedures and
practices and to take any steps which may be
necessary to secure their observance.
– includes compliance with ILO conventions in
relation to crewing conditions as well as IMO
conventions of training under STCW and sufficiency
of crew under SOLAS (Chapter 5 reg 13).
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 • Technical Duties
– Art 94 requires every flag State to take such measures for ships flying its
flag as are necessary to ensure safety at sea with regard to:
• construction of ships,
• equipment on ships,
• seaworthiness,
• manning of ships,
• training of crews,
• use of signals,
• the maintenance of communication by radio,
• prevention of collisions, and
• prevention, reduction and control of marine pollution.

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 • Duty to survey and inspect flagged vessels
• Duty to issue certificates for flagged vessels
• SOLAS 74, MARPOL 73/78, Load Line 66, STCW 95 and Colregs 72.
• Flag State may elect to exercise its duty itself, or it may elect to
entrust some or all of these duties to Recognized Organizations
(ROs).
• If statutory duties are delegated to ROs the flag State must ensure
that audits and independent flag State inspections are carried out to
ensure that these duties are being effectively carried out by the RO.

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 Effective Flag State Control

• Effective Flag State Control

– an effective national maritime administration
– adequately resourced, both financially and with
appropriately qualified and experienced personnel
– embedded into the Government structure
– Flag State, as a contracting party to Conventions, must
have the political will and legal capacity to bring these
Conventions into effect in its internal law

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 – The maritime administration should have the ability and resources
to register and administer the ships flying its flag on a worldwide
basis, and to effectively monitor organizations to which it has
delegated statutory responsibilities.
– The principal maritime and labour Conventions should be brought
into effect through the State’s internal law
– active participation in appropriate standards setting international
organisations such as the IMO, ILO, and port State control regimes.
– Regular reporting of the flag State’s activities should be made to
the IMO and ILO as required by various instruments.

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 • Effective Flag States are also required to
– maintain a register of ships,
– to ensure that ships are surveyed before registration and at appropriate intervals
thereafter;
– ensure that appropriate charts and navigational instruments are aboard;
– ensure that the ships on their register are crewed by properly trained and qualified
personnel,
– ensure that those ships do not pollute the marine environment,
– ensure ships are regularly inspected and certificated, and
– ensure ships do not proceed to sea unless they are seaworthy.
– If ships flying their flag pollute the marine environment the State is required to
investigate the incident and, if necessary, institute proceedings.

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 Implementation of Mandatory IMO Instruments
• Code for the Implementation of Mandatory IMO Instruments
(Res A.1054(27)) 2011:
– the Government of the State must have: 
1. the ability to promulgate laws which permit effective jurisdiction and control in
administrative, technical and social matters over ships flying its flag and, in particular,
provide the legal basis for general requirements for registries, the inspection of ships, safety
and pollution-prevention laws applying to such ships and the making of associated
regulations.
2. a legal basis for the enforcement of its national laws and regulations including the
associated investigative and penal processes; and
3. the availability of sufficient personnel with maritime expertise to assist in the
promulgation of the necessary national laws and to discharge all the responsibilities of the
State, including reporting as required by the respective conventions.

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