I am indeed very pleased and honoured to
be invited today at this event held in a prestigious academic institution, in
which I had the unique chance to pursue my postgraduate studies in Maritime Law
in somewhat 45 years ago, back in 1970-1971. Studying maritime law at that time
was innovative and interesting, but most importantly gave me the opportunity to
think outside the box, since shipping is a global industry with cognitive
thinking and in many cases, chaotic harmony.
I have been invited to deliver an address
on the theme entitled “The Evolution
of Shipping Law”, a challenging theme of a great variety and complexity.
I invite you to follow me in this
challenge in my capacity as a former practising lawyer, but also as a
politician involved in the shaping of the maritime policy of the Republic of
Cyprus.
The last four decades have been full of
radical changes in all aspects of our daily life due to major geopolitical
changes, technology progress, economic development, economic integration and globalisation. Such important changes have
certainly contributed to the evolution of shipping law. I will try to describe
this evolution in two distinctive streams:
The first one will cover the international and regional evolution of
shipping law.
The second one will deal with the
evolution of shipping law within the national - Cypriot context.
Focusing firstly on the international side
of the evolution, one could say that, while maritime
law consists of two broad elements, dividing it into two neat compartments and
labelling them "public" and "private", is rather an
oversimplification. The shipping industry is involved in many matters of
general law and non-maritime legal transactions which are not part of the lex
maritima.
It is well acknowledged that many aspects
of private maritime law are in fact derived from the lex mercatoria. The
bifurcation may be attributable to perceptions that are politically tinged.
Ships are usually acquired either through
private purchase or lease, better known as demise or bareboat charter. Indeed
lease is a term used more in the context of ship financing. After a ship is
been acquired it needs to be registered. Registration serves a three-fold purpose.
Firstly, registration is the procedural
device through which the flag State confers nationality on a ship; The granting of nationality makes a ship
subject to the national legal order-regime without which, the ship including
people on board would, metaphorically, float in a legal vacuum;
Secondly, registration serves as prima
facie evidence of ownership of the ship and protects other proprietary
interests such as mortgages and other registered charges. This is a private law
function;
Thirdly, registration serves as a public
record of proprietary interests. This is somewhat of a hybrid function. Also,
details by which a ship can be identified such as its dimensions, tonnages and
classification are also recorded in the register.
Although there was an attempt by the
United Nations Conference on Trade and Development (UNCTAD) in the 80s to adopt
an International Convention on ship registration namely the United Nations
Convention on Conditions for Registration of Ships, 1986 (UNCCROS), that
convention remains till today not in force.
Therefore, evolution of shipping law in
relation to ship registration remains till today a national issue and not an
international one.
The proprietary interests in a ship are of
three kinds, namely, ownership, mortgages and maritime liens. Ship acquisitions
are usually financed through maritime mortgages where the subject ship is the
principal security for the loan.
On the international level, shipping law
covering mortgages and liens has evolved and on a third attempt the
International Convention on Maritime Liens and Mortgages, was adopted in 1993
and entered into force in 2004, without the United Kingdom, which means that
the English law on this subject will remain what it is today.
The flag State’s responsibilities are set
out in Article 94 of the 1982 United Nations Convention on the Law of the Sea
(UNCLOS), albeit in general terms which have evolved through the provisions and
requirements of International conventions such as the International Convention
for the Safety of Life at Sea (SOLAS) of 1974 and the International Maritime
Labour Convention (MLC) 2006. Safe manning provides for sufficiency, efficiency
and safety.
Seafarer’s qualifications in terms of
training and certification requirements and watch keeping arrangements on board
are governed by the Standards of Training, Certification and Watch keeping
(STCW) Convention, 1978, which was overhauled extensively by the 1995
amendments and continues to evolve with its last update in 2010.
Continuing further, we will see that the
two areas of shipping law that have actually evolve radically the last 20
years, are matters relating to the safety of life at sea and the prevention of
pollution from ships. In this specific instance I have used the term pollution
and not marine pollution, since the matter does not anymore relate to the
marine environment only, but to the environment in general.
Maritime Security is a new topic in
shipping law and is in the forefront of current concerns in the maritime world.
Some are of the view that security is an extension of safety and that it
represents the third pillar in the mandate of the International Maritime Organization
(IMO), the first two being maritime safety and protection of the marine
environment.
With increasing piracy activity at sea and
the threat of terrorism since the Achille
Lauro incident in 1985, maritime security has assumed a distinctive
dimension. Meanwhile, recent events of terrorist activity mobilized the
international maritime community, somewhat hastily, into adopting the
International Ship and Port Facility Security (ISPS) Code which took effect in
July 2004.
By contrast, the acts committed off the
waters of Somalia, which continue to be a current menace, mainly occur on the
high seas, and therefore, in terms of international law, are governed by the
relevant provisions of UNCLOS and customary international law.
The problem with the Somalian brand of
piracy has to do with lack of adequate enforcement. While there is the will to
enforce, the way to achieve it is still uncertain in terms of global action,
although efforts are made to find an effective solution to the problem.
Article 211 of UNCLOS requires flag States
to adopt laws for the prevention, reduction and control of marine pollution
applicable to their ships, and the laws must be consistent with generally
accepted international rules and standards established through the relevant
competent international organization or general diplomatic conference.
Since the mid-nineties these aspects are
dealt through the competent International Organization which in this case is
the International Maritime Organization (IMO) and in true essence, it does not
cover only ship source pollution relating to the marine environment but it
addresses the environment in general.
The evolution of shipping law in relation
to ship source pollution the last ten years is of great interest. The typical
pollution regimes such as preventing oil spills from ships or creating
international regimes for clean-up operations and limiting owners liability or
even creating compensation regimes through funds of those they generate the
transport of oil are not anymore the priority.
Priorities now are set into matters such
as pollution generated from the use of harmful coatings, transfer of unwanted
organisms from ship ballast water or ships bio fouling, pollution generated by
the use of low grades of fuel such as Nitrogen and Sulphur oxides and last but
not least, issues relating to climate change and the emission of greenhouse
gases such as carbon dioxide.
It is evident from what I have presented
till now, that the international evolution of shipping law derives mainly the
last 10 to 15 years from a number of sources, of which, custom and treaties are
the principal ones.
The European Union law is a good example
how regional implementation can be enforced with central body supervision, in
this case through the European Commission.
Specifically, the
common shipping policy developed relatively late by the EU authorities in
comparison with other policies (e.g. common agricultural policy) was first
articulated over the principle of non-discrimination between EC nationals on the
basis of nationality and the principle of freedom of establishment , on
the occasion of ship registration issues.
The positive attitude of the European
Court of Justice towards the development of such a policy, in combination with
the appropriate interpretation of the provisions of the Founding Treaties of
the European Communities, allows since 1991 the possibility to registering
ships owned by EC nationals in the registries of Member States other than the
one of the ship owner’s origin
In terms of a real evolution we note the
growing role of the EU in relation to maritime
safety matters. This role, whose advisability has been challenged on the
basis that traditionally the IMO is the competent forum to legislate on
maritime safety, is now becoming more and more widely accepted by the
international community.
The volume of the EU Acquis in the field
of maritime safety has
considerably increased. As on the international level, the EU
maritime safety rules target the various aspects of the shipping adventure: the
ship, the cargo, the seafarers, and the practice of safe navigation.
The same evolving trend is evidenced with
regard to the EU rules on the protection of marine environment
and on maritime security. On the other hand, the singularity of the EU
(originally conceived as an organisation for the economic integration of its
member States), produced a corpus of classic rules dealing with
competition law issues of shipping.
These rules have
been elaborated for some years now (since the 80’s) at the early stages of the
formulation of a common maritime transport policy. Relevant State aid rules
have evolved and are governed by the Treaty provisions and the “Community Guidelines on State
Aid to Maritime Transport".
I wish now to deal with the evolution of
shipping law within the national - Cypriot context. The carrying -out of
shipping activities in Cyprus entails the existence of an adequate – and
evolving legal framework. In this respect, the last decades have subjected
Cyprus shipping law to a double evolution – a quantitative and qualitative evolution.
The core of the Cyprus merchant shipping
legislation comprises of three laws enacted back in 1963 mainly dealing only
with ship registration, including sales and mortgages, the engagement of
seafarers on board Cyprus ships and taxation.
Cyprus has also adopted the latest
international conventions and protocols on maritime safety and security,
prevention of pollution from ships, liability and maritime labour including
training, certification and watchkeeping of seafarers.
The web of all these national laws forms a
corpus of around 300 statutes regulating
merchant shipping matters. One third of all these national statutes (around 110
statutes) derive from the European Union acquis and relevant transposition.
The quantitative evolution is not so much
evident in terms of around 500 judicial authorities produced by the Cyprus
Admiralty Court since 1960. Most of these authorities refer in a constant
manner to the topics of the carriage of
goods by sea (23%), maritime
liens (17%), maritime labour
law (15%), and salvage (15%).
On the Qualitatively
side, shipping law in Cyprus evolved in two aspects:
·
The enactment of sui generis – innovative national
legislation, that reflects a national competitive shipping policy ;
·
Evolution due to
intrusions from civil law (Continental law), transforming it progressively, into a mixed
legal system.
The Cyprus legal system is therefore today a mixed system of law and reflects mainly elements of both Common and Civil law and
the law in force is derived from more than one legal
tradition or legal family. This trend is also valid in the case of Cyprus
shipping law.
Voluntary reception of foreign shipping law
has been effected by the “Simple rule
borrowing”. In
taxation issues, the introduction of the tonnage tax concept in Cyprus in 1963
for the shipowners, inspired by the Greek and Panamanian legislations, can be
seen as a “simple rule borrowing”
practice.
As a genuine example of “transmigration of legal ideas” we can mention
the introduction in the Cyprus legislation in 1986 of the concept of bareboat
charter registration of ships, a concept invented in 1951 in Germany, which
permits the distinction between flag and
registration, i.e. a distinction between public
law (droit public) and private law (droit privé), a cardinal division in continental
law systems.
As, in real life, in the cases of a medical urgency, “legal transplants” are effected when there is an urgent
need to cure a given situation!!! The ministerial powers
to refuse / impose conditions for ship registration (age limit) and to revoke
the nationality of Cyprus ships were transplanted during the period 1968-82 from the
Panamanian, Liberian and Greek legislations, as drastic and urgent measures in
order to rectify the very bad image of the Cyprus flag at that time.
The established anglicization of Cyprus
shipping law seems today to
be progressively displaced by EU Law, due to the relevant harmonisation
requirements.
All these recent trends create a displacement of anglicization and a revival
of mixture in Cyprus shipping law.
The enactment in June 2012 of the Protection
of Cyprus Ships Against Acts of Piracy and Other Unlawful Acts Law (Law
77(I)/2012) constitutes a comprehensive and innovative national legislation
for the protection of Cyprus ships from piracy and other unlawful acts.
The new Law establishes the required legislative framework for
permitting the use, in a regulated manner, of privately contracted unarmed and
armed security personnel on board Cyprus ships when they are sailing through
high risk areas such as the North West Indian Ocean or along the West coast of
Africa in the Gulf of Guinea.
In conclusion, I would like to say that shipping law evolves in certain
areas faster than others especially in matters relating to the environment and
in some other areas in opportunistic fashion such as the matters relating to
security.
It is indeed also true that private shipping law as was formed in
England and as spread to the rest of the world (including my country, Cyprus),
may no longer be the result of market practices incorporated in acts of the
British Parliament or recognized by Court judgments in England.
Today, the evolution in shipping law arises from international
collective decisions taken in UN Agencies such as IMO and ILO, regional acts
such as Directives and Regulations of the European Union or Diplomatic
Conferences.
In conclusion, shipping law in the next ten years will not be what is
today. It will certainly evolve, adapt and expand in some cases in a chaotic
manner with the underlined
mission of ensuring legal certainty for
shipping industry.
I am confident that such anticipated evolution, will allow all
stakeholders to perform their duties and exercise their rights in a fair and
balanced way within the new
status of affairs in global economy and world trade.
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