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The International Law of the Shipmaster Maritime and Transport Law Library

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The International Law of the Shipmaster Maritime and Transport Law Library THE INTERNATIONAL LAW OF THE SHIPMASTER MARITIME AND TRANSPORT LAW LIBRARY Maritime Fraud Commencement of Laytime by Paul Todd by Donald Davies (2003) (2006) Port State Control Liability Regimes in Contemporary Maritime Law 2nd edition Edited by Professor D. Rhidian Thomas by Dr Z. Oya Öz¸cayir (2007) (2004) Bills of Lading and Bankers’ Documentary Credits War, Terror and Carriage by Sea 4th edition by Keith Michel by Paul Todd (2004) (2007) Freight Forwarding and Multimodal Contracts of Carriage by Land and Air Transport Contracts 2nd edition by David A. Glass by Malcolm Clarke and (2004) David Yates (2008) Marine Insurance: Law and Practice Legal Issues Relating to Time Charterparties by F. D. Rose Edited by Professor D. Rhidian Thomas (2004) (2008) General Average: Law and Practice The Evolving Law and Practice of 2nd edition Voyage Charterparties by F. D. Rose Edited by Professor D. Rhidian Thomas (2005) (2009) International Carriage of Goods by Road: CMR Marine Insurance Clauses 5th edition 4th edition by Malcolm Clarke by N. Geoffrey Hudson and Tim Madge (2009) (2005) The Rotterdam Rules Marine Insurance: The Law in Transition by the Institute of Maritime Law, Edited by Professor D. Rhidian Thomas Southampton University (2006) (2009) Risk and Liability in Air Law by George Leloudas (2009) THE INTERNATIONAL LAW OF THE SHIPMASTER BY JOHN A.C. CARTNER RICHARD P. FISKE TARA L. LEITER LONDON 2009 Informa Law Mortimer House 37–41 Mortimer Street London W1T 3JH [email protected] an Informa business © John A.C. Cartner 2009 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN 978 1 84311 807 7 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of Informa Law. Whilst every effort has been made to ensure that the information contained in this book is correct, neither the authors nor Informa Law can accept any responsibility for any errors or omissions or for any consequences resulting therefrom. Typeset by Interactive Sciences Ltd, Gloucester Printed in Great Britain by MPG Books, Bodmin, Cornwall Printed on paper sourced from managed forests This book is dedicated to Rear Admiral Malcolm MacKinnon III, U.S.N. (retired) friend and mentor. PREFACE We have observed that the law of the shipmaster is everywhere yet it is nowhere. The shipmaster is often mentioned in cases, occasionally as a party and frequently in obiter dicta. He is discussed in the secondary sources and reviews but there are usually few references to follow for interesting points. We have looked at the shipmaster as the person in the centre of the great enterprise of shipping and trade. As a person in the centre, his situation is unique and so, in a sense, is this book. In The International Law of the Shipmaster we have placed in a single volume a survey of the law affecting the shipmaster within the jurisdictions in which he finds himself and his vessel. The book is not about how to be a shipmaster, of which there are many in the literature. The book is not about the practice of shipmastering to the highest standards, of which there are also many guides on the market. It is, on the other hand, a book which places the shipmaster in context in law, custom, regulation and practice internationally and domestically in the various legal domains in which he may be examined. One may ask, ‘‘Why is all this necessary or even important?’’ There are both simple and complex answers. The simplest is that a volume such as this saves immense time and effort in finding in detail the law governing master for a legal practitioner. It provides a coherent source of law for court and law clerk and judge. It gives to the shipmaster a portable survey of how he stands in the law in various places in the world. It can assist those unfamiliar with maritime law in applying it properly – and not applying inapposite terrine law – to shipmaster cases. The ship manager or operator can obtain a deeper insight into the currents swirling around a master in any decision he might make. The risk manager can see readily where risks lie for the master and for the vessel and voyage. It has often been said that maritime colleges do not train third officers but rather train shipmasters. This book assists to that end. The owner may be able to gain a deeper understanding of the person responsible for his ship around the clock and the shipper may also gain that understanding for the person who holds his cargo as it transits the ocean. Port state officers and coastguards and enforcement officers likewise can gain better insights into the man with whom they deal regularly and frequently, but little understand. The same can be said for the booking clerk, the broker, the banker, the consul, the refinery manager, the port authorities, foreign ministries and navies and the myriad other people who do business with the shipmaster. vii PREFACE As the world continues to shrink in terms of time and communication, the master has taken on an even more demanding role with the proper use of information to make decisions he, until recently, never had. He can now obtain almost instant information and guidance for salvage, cargo, engineering, voyage and transit, medical, labour, weather and conditions in ports. The information is in fact so great that he may be unable to deal with it all. The modern shipmaster is usually informed, educated, well-trained and cognizant of commercial and maritime practices and deserves to understand his place in law as well as being understood in law by those with whom he works. John A.C. Cartner, Richard P. Fiske and Tara L. Leiter, September 2009 viii ACKNOWLEDGEMENTS We gratefully acknowledge the expertise, assistance and good cheer we have received from lawyers Renaud Beauchard, J.D., LL.M. (Cantab.); Mari P. Dorn- López, J.D.; Robyn M. Cincotta, M.A., J.D.; Gary Prussak Light, J.D.; Julie A. Locascio, M.R.P., J.D.; Andrew M. Lyons, J.D.; Patricia B. Minikon, J.D.; Matthew Mosellen, J.D.; Katherine T. Wallace, M.A., J.D., Ph.D.; Peter D. Wolf, J.D., LL.M.; J. Robert Force, J.D. in Phnom Penh for his expertise in Cambodian Law; Chinachart Vatanasuchart in Bangkok for her expertise in Thai law; Thani Mohamed, Maitrise en Droit, batonnier of the bar of Mayotte, for his expertise in Comoros Law; the Dean and Faculty of the George Mason University School of Law, Arlington, Virginia, U.S.A and these candidates for the degree juris doctor: Monica Barsoum, Richard J. Brahan, JohnPaul Callan, Heather A. Clark, Lauren E. Gallo, Joshua Newborn, Tadena A. Simpson. We are grateful to our dedicated staff: Christian W. J. Cartner, A.B., Peter McChesney, B.A., Sarah M. Gabbert, B.A., Sharon K. Griffin, A.B.; Shari Hillis, Richard R. MacKinnon, M.L.S.: Christina G. DeVito; Nancy L. Perkins; and the Librarians of the United States Library of Congress Law Library; the Librarians at the George Mason School of Law Library, and Blank Rome, LLP, Washington, D.C. ix OUTLINE CONTENTS PAGE Preface vii Acknowledgements ix Table of Cases lxxvii Part I: The Shipmaster in Context 1. INTRODUCTION TO THE LAW OF THE SHIPMASTER3 2. OVERVIEW AND INTRODUCTION TO THE INTERNATIONAL LAW AFFECTING THE SHIPMASTER 19 3. INTERNATIONAL ORGANISATIONS AND CONVENTIONS AND THE SHIPMASTER 39 4. DOMESTIC LAWS AND THE SHIPMASTER 53 5. OVERVIEW OF JURISDICTION 69 6. THE FLAG STATE AND THE SHIPMASTER 81 7. COASTAL AND PORT STATES AND THE SHIPMASTER 97 Part II: The Doctrines of the Law of the Shipmaster 8. THE SHIPMASTER, THE OWNER AND THE CHARTERER 121 9. THE POWERS, DUTIES AND RIGHTS OF THE SHIPMASTER 145 10. SHIPMASTERS AND SAFETY AND SEAWORTHINESS 169 11. THE SHIPMASTER AND CARGO AND BILLS OF LADING 187 12. THE SHIPMASTER AND THE ENVIRONMENT 199 13. LABOUR AND THE SHIPMASTER 211 14. LIMITATION OF THE SHIPMASTER’S LIABILITY 227 Part III: The Principal Domestic Laws Governing the Shipmaster in the States of the United Nations and the International Maritime Organisation Islamic Republic of Afghanistan 242 Republic of Albania 242 People’s Democratic Republic of Algeria 244 Principality of Andorra 247 xi OUTLINE CONTENTS Republic of Angola 248 Antigua and Barbuda 249 Argentine Republic 253 Republic of Armenia 258 Commonwealth of Australia 259 Republic of Austria 263 Republic of Azerbaijan 264 Commonwealth of the Bahamas 268 Kingdom of Bahrain 272 People’s Republic of Bangladesh 273 Barbados 276 Republic of Belarus 279 Kingdom of Belgium 280 Belize 284 Republic of Benin 287 Kingdom of Bhutan 288 Plurinational State of Bolivia 289 Republic of Bosnia-Herzegovina 290 Republic of Botswana 291 Federative Republic of Brazil 292 Brunei Darussalam 297 Republic of Bulgaria 298 Republic of Burkina Faso 301 Republic of Burundi 302 Kingdom of Cambodia 302 Republic of Cameroon 304 Canada 305 Republic of Cape Verde 311 Central African Republic 312 Republic of Chad 313 Republic of Chile 313 The People’s Republic of China 318 Republic of Colombia 322 Union of the Comoros 324 Democratic Republic of Congo 326 Republic of Congo (Zaire) 327 Cook Islands 329 Republic of Costa Rica 332 Republic of Côte d’Ivoire 333 Republic of Croatia 334 Republic of Cuba 338 Republic of Cyprus 339 Czech Republic 344 Kingdom of Denmark, including Greenland and the Faroes 345 Republic of Djibouti 348 Commonwealth of Dominica 349 Dominican Republic 352 Republic of Ecuador 354 Arab Republic of Egypt 358 Republic of El Salvador 362 xii OUTLINE CONTENTS Republic of Equatorial Guinea 363 State of Eritrea 364 Republic of Estonia 365 Federal Democratic Republic of Ethiopia 368 Republic of the Fiji Islands 369 Republic of Finland 371 French Republic, including Overseas Collectif.
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