By Anders Leissner , Director, Corporate Legal & FD&D Legal update The Strait of hormuz and the law This past summer has regretfully as the sovereign territory of a state. reasonable judgment as to whether any not offered much rest for marine therefore has no territorial jurisdiction given order from charterers or any within the TSS. situation the vessel is in will result in a insurers and their members, given war risk occurring (i.e. seizure or Iran’s seizures of several vessels in detention by the Iranian authorities). the vicinity of the Strait of Hormuz Mare liberum English case law suggests that for a through which a quarter of the There is one further important factor to decision of the Master to be reasonable, it world’s total oil consumption consider. The Straight of Hormuz is a must be made honestly and in good faith, passes. The most notable incident strait used for international navigation as and not arbitrarily or capriciously. In defined in Article 37 of United Nations addition, there must be a real likelihood of is the seizure of the Swedish Convention on the Law of the Sea a danger occurring, meaning that a owned and UK flagged tanker (UNCLOS). As such, vessels passing concern based only on speculation or Stena Impero . At the time of through the strait benefit from the right of something being a bare possibility would transit passage, which provides for be insufficient. If there is a bona fide war publishing the vessel is still under unimpeded access through the entire risk, then Masters are entitled to take detention. Although it does not strait pursuant to Article 38 of UNCLOS. various steps as outlined, regardless as to take many legal skills to conclude As a result, transit passage cannot be whether charterers consent or not. suspended and vessels in transit must be the seizure is unlawful it may be permitted to pass through the territorial instructive to mention something waters of the coastal state. Always seek legal advice about the legal regime for the The principle of free transit stems from Whether a Master is entitled to refuse an Strait of Hormuz. the ancient Mare Liberum doctrine order depends on the circumstances pursuant to which the high seas (i.e. the prevailing at the relevant time. At the time ocean area outside states’ Exclusive of writing this article the general A strait shared by two Economic Zones) is international territory perception is that there is a high risk for states and all nations are free to use it. The vessels having a connection with the UK doctrine is codified in Article 87 of – in particular a UK flag - being seized The strait has a narrowest point of 21 UNCLOS. This means that even if the and/or attacked by the Iranian miles between Iranian and Omani Iranians would have argued that Stena government. territory. As both Iran and have Impero was within Iranian territorial declared that their territorial waters waters the seizure would still be a clear A fair assessment (again at the time of extend to 12 nautical miles, the maritime infringement of international law. writing) is therefore that it is more likely border in the strait is defined by a treaty that a court or tribunal would allow a from 1974 between the two states. This Master of a UK flagged vessel to refuse means that no part of the strait lies Contractual aspects an order to call at the under outside of Iranian or Omani territorial the CONWARTIME clause than a vessel waters. To reduce the risk of collision, One central question for vessels involved not having a connection with UK. vessels passing through the Strait follow in trade in the Persian Gulf is to what However, legal advice should always be a Traffic Separation Scheme (TSS), with extent a Master can refuse such an order, retained for any specific situation. The inbound vessels using the northern lane in the light of the risk for seizure on the Club’s FD&D lawyers are well equipped to and outbound vessels using the southern inbound and outbound leg. Assuming the assist to this end. lane. According to the charts I have seen, charter party incorporates the the entire TSS – including the northern CONWARTIME clause, the risk for seizure In the meantime we should all hope that lane - lies solely within Omani waters. is considered a war risk. Pursuant to that political tensions will ease so that world States’ territorial waters are recognised clause, the Master must make a trade can go back to normal.

34 / Triton 2 2019