Introduction
Sea transportation, overseas trade, etc. existed way before industrialization and they play a major role in the world’s economy to date. This calls for some form of regulation over such affairs.
The United Nations conference on Trade and Development published in its 2018 report that maritime transport is the backbone of world trade and almost 80% of the world’s trade is seaborne.[1]
Ancient maritime rules were traces from the customs of the Egyptians, Greeks and Phoenicians who conducted extensive trade through the Mediterranean Sea. The earliest maritime code belonged to the Rhodians and these laws were leveled up by the then-emerging empire, the Romans. The oldest of the maritime codes found in the Roman law was the Consolato del Mare, or Regulation of the Sea. All these developments contributed to the formulation of the admiralty laws of England. These doctrines were introduced in the colonies of England and later were carried to the U.S.A.[2] The contemporary maritime law formulated in the post-modern era contains the doctrines derived from the ancient codes and also various new laws. Since we now got a brief idea about the historical development of maritime law, which is also known as admiralty law, let us now try to understand contemporary international maritime law.
Maritime law: Meaning
Maritime laws are also called Admiralty laws. These laws are a distinct body of private and public laws governing maritime activities i.e. the shipping agreements, offences committed in the international waters, marine commerce, issues relating to sea transportation, disputes over nautical matters, etc. The Merriam-Webster Law dictionary defines maritime law as the law that relates to commerce and navigation on the high seas and other navigable waters and that is administered by the admiralty courts.[3]
Difference between Maritime law and Law of the Sea
The Law of the Sea is a set of laws governing the interaction between nations over marine matters. These rules have been codifies in the 1994 United Nations Convention on the Law of the sea, or the ‘UNCLOS’. Thus the Law of the Sea applies to public entities pertaining to maritime issues.
The Maritime Law is a set of laws governing the private entities like the private ship owners of the ships which travel in the international waters, private shipping agreements relating to international waters, etc.[4]
Components of Maritime Law
- Maritime liens[5]: In admiral cases, proceedings can be brought either against individuals or against maritime property like a vessel or freight, etc. the proceedings against individual are in personem while those against the maritime property are in rem. Maritime liens constitute a category of proceedings in rem. In a proceeding in rem, the maritime property can be arrested and kept in the custody of the court unless the owner obtains its release by necessary legal procedures. Mostly in the pragmatic world the owner secures the property to avoid an arrest.
- Shipping Charters[6]: Various contracts govern shipping services i.e. transportation of cargo through waters. These contracts which govern the use of ships in international waters are made by the charter parties and are of three types –
- Demise or Bareboat charter: In this, the shipowner transfers the possession of the ship to the charterer who acts like the owner of the ship during the period of the charter. The charterer engages the master and the crew of the ship.
- Time charter: In this, the shipowner himself employs the master and the crew while the charterer only has the right to direct the direction of the ship for the transportation of the cargo.
- Voyage charter: In this, either part or full of the cargo space is rented for a voyage or a series of voyages.
- Collision Liability[7]: Liability for collision damage is based upon the fault principle which says that a colliding vessel will not responsible for damage to another ship or to a fixed object like a bridge unless the collision is caused by a deficiency in the colliding vessel or by negligence on the part of its navigators.
- General Average and Salvage[8]: It is a doctrine in maritime law all the parites in a sea venture who save maritime property from loss or damage. Such parties are entitled to an award for their efforts. Also, those whose property has been salvage in their effort to rescue others’ property shall be entitled to compensation from the latter.
- Marine Insurance: Marine insurance aims to protect the maritime property from unforeseen situations that may damage such property.
Issues and Challenges in the International Maritime Law
The laws may be framed with foresight but the lacunae in their implementation will always be present because of various pragmatic challenges and complexities. The same is the case with the implementation of International Maritime Law.
Weak law enforcement, poor security, socio-political instability, etc. lead to the commission of various offences in the international waters like piracy, armed robbery at sea, violence at sea, corruption, illegal fishing, smuggling, etc. In order to address these issues and provide relief to the aggrieved parties, inter-State cooperation and just legal enforcement are required. But sadly, States fail to cooperate most of the time and justice in terms of maritime law only turns out to be a mirage.
Defects in information sharing, search, investigation, sea-based enforcement actions worsen the matters. Navigation of pirate ships in deep creeks is another challenge faced by the legal enforcement agencies. Gathering of evidences in the international waters poses a huge challenge when it comes to the judicial process. Corruption by the security personnel and government officials dilutes justice rendered to the aggrieved.
The maritime industry did not fail to adapt itself to the advancing technology but the challenge is that digitalization of maritime trade increases cyber-crime. The existing legal precedents fail to serve such technological challenges faced in the maritime industry.
All these issues pose serious challenges in the operation of maritime law which reduces the efficiency of its enforcement.
[1] ‘Review of Maritime Transport 2018’, United Nations Conference on Trade and Development, https://unctad.org/en/pages/PublicationWebflyer.aspx?publicationid=2245 (last accessed 17 June, 2020)
[2] Hailegabriel Gedecho, ‘Historical Development of Maritime Law’, Abyssinialaw, 2013, https://www.abyssinialaw.com/online-resources/study-on-line/item/1072-historical-development-of-maritime-law (last accessed 15 June, 2020)
[3] ‘Maritime Law’, Merriam-Webster, https://www.merriam-webster.com/legal/maritime%20law (last accessed 16 June,2020)
[4] ‘Maritime Law vs. Law of the Sea’, The Krist Law Firm, P.C., https://www.houstoninjurylawyer.com/maritime-law-vs-law-sea/ (last accessed 16 June, 2020)
[5] ‘Maritime Liens’, Multilaw, https://www.multilaw.com/Multilaw/Multilaw_News/Member_Firm_News/Maritime_Liens.aspx (last accessed 16 June, 2020)
[6] ‘Shipping Law – Shipping Contracts’, Law Library – American Law and Legal Information, https://law.jrank.org/pages/10259/Shipping-Law-Shipping-Contracts.html (last accessed 16 June, 2020)
[7] ‘Maritime Law’, Britannica, https://www.britannica.com/topic/maritime-law (last accessed 16 June, 2020)
[8] ‘A guide to General Average and Salvage’, Phoenix Risk Services, http://www.phoenixrisksvcs.com/library/a-guide-to-general-average%20salvage/ (last accessed 16 June, 2020).
This Article is Authored by Tonangi Sanjana Priya, 1st Year, B.A. LL.B. (Hons.) Student at GITAM (Deemed to be University), Visakhapatnam.
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