and Jurisdiction (Maritime and transport law library)International maritime conventions

INTERNATIONAL MARITIME CONVENTIONS

VOLUME II:

Navigation, Securities, Limitation of Liability and Jurisdiction

MARITIME AND TRANSPORT LAW LIBRARY

MARITIME AND TRANSPORT LAW LIBRARY

International Maritime Conventions

Volume Two

Navigation, Securities, Limitation of Liability

and Jurisdiction

by Francesco Berlingieri

(2014)

Maritime Law

3rd edition

edited by Yvonne Baatz

(2014)

Offshore Contracts and Liabilities

by Bari s¸ Soyer and Andrew Tettenborn

(2014)

Marine Insurance Fraud

by Bari s¸ Soyer

(2014)

International Maritime Conventions

Volume One

The Carriage of Goods and Passengers

by Sea

by Francesco Berlingieri

(2014)

International Carriage of Goods by Road: CMR

6th edition

by Malcolm A. Clarke

(2014)

The Maritime Labour Convention: International

Labour Law Redefi ned

edited by Jennifer Lavelle

(2013)

Modern Maritime Law, Volume 1:

Jurisdiction and Risks

3rd edition

by Aleka Mandaraka-Sheppard (2010)

(2013)

Modern Maritime Law, Volume 2:

Managing Risks and Liabilities

3rd edition

by Aleka Mandaraka-Sheppard

(2013)

Carriage of Goods by Sea Land and Air:

Uni-Modal and Multi-Modal Transport in the

21st Century

edited by Bari s¸ Soyer and Andrew Tettenborn

(2013)

The Law of Yachts and Yachting

by Filippo Lorenzon and Richard Coles

(2012)

Freight Forwarding and Multimodal

Transport Contracts

2nd edition

by David A. Glass

(2012)

Marine Insurance Clauses

5th edition

by N. Geoffrey Hudson, Tim Madge

and Keith Sturges

(2012)

Pollution at Sea: Law and Liability

edited by Bari s¸ Soyer and Andrew Tettenborn

(2012)

Contracts of Carriage by Air

2nd edition

by Malcolm A. Clarke

(2012)

Place of Refuge: International Law and the

CMI Draft Convention

by Eric Van Hooydonk

(2010)

Maritime Fraud and Piracy

by Paul Todd

(2010)

The Carriage of Goods by Sea under the Rotterdam

Rules

edited by D. Rhidian Thomas

(2010)

The International Law of the Shipmaster

by John A. C. Cartner, Richard P. Fisk and

Tara L. Leiter

(2009)

The Modern Law of Marine Insurance

edited by D. Rhidian Thomas

(2009)

The Rotterdam Rules: A Practical Annotation

by Yvonne Baatz, Charles Debattista, Filippo

Lorenzon, Andrew Serdy, Hilton Staniland

and Michael Tsimplis

(2009)

The Evolving Law and Practice of Voyage Charters

edited by D. Rhidian Thomas

(2009)

International Carriage of Goods by Road: CMR

5th edition

by Malcolm A. Clarke

(2009)

Risk and Liability in Air Law

by George Leloudas

(2009)

Legal Issues Relating to Time Charterparties

edited by D. Rhidian Thomas

(2008)

Contracts of Carriage by Land and Air

2nd edition

by Malcolm A. Clarke and David Yates

(2008)

Bills of Lading and Bankers’ Documentary Credits

4th edition

by Paul Todd

(2007)

Liability Regimes in Contemporary Maritime Law

edited by D. Rhidian Thomas

(2007)

Marine Insurance: The Law in Transition

edited by D. Rhidian Thomas

(2006)

Commencement of Laytime

4th edition

edited by D. Rhidian Thomas

(2006)

General Average: Law and Practice

2nd edition

by F. D. Rose

(2005)

War, Terror and Carriage by Sea

by Keith Michel

(2004)

Port State Control

2nd Edition

by Oya Ozcayir

(2004)

Modern Law of Marine Insurance:

Volume Two

edited by Francis Rose

(2002)

Commercial and Maritime Statutes

edited by Peter Macdonald Eggers and

Simon Picken

(2002)

Bills of Lading: Law and Contracts

by Nicholas Gaskell, Regina Asariotis and

Yvonne Baatz

(2000)

Shipbrokers and the Law

by Andrew Jamieson

(1997)

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INTERNATIONAL MARITIME

CONVENTIONS

VOLUME II

Navigation, Securities, Limitation of Liability

and Jurisdiction

FRANCESCO BERLINGIERI

Published 2015

by Informa Law from Routledge

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Informa Law from Routledge

711 Third Avenue, New York, NY 10017

Informa Law from Routledge is an imprint of the Taylor & Francis Group, an Informa business

© 2015 Francesco Berlingieri

The right of Francesco Berlingieri to be identifi ed as author of this work has

been asserted by him in accordance with sections 77 and 78 of the

Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced

or utilised in any form or by any electronic, mechanical, or other means,

now known or hereafter invented, including photocopying and recording,

or in any information storage or retrieval system, without permission in

writing from the publishers.

Whilst every effort has been made to ensure that the information contained

in this book is correct, neither the author nor Informa Law can accept

any responsibility for any errors or omissions or for any consequences

arising therefrom.

Trademark notice: Product or corporate names may be trademarks or

registered trademarks, and are used only for identifi cation and

explanation without intent to infringe.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data

Berlingieri, Francesco, author.

International maritime conventions / by Francesco Berlingieri.

—(Maritime and transport law library)

ISBN 978-0-415-71984-1 (hardback) — ISBN 978-1-315-79645-1 (ebook)

1. Maritime law. I. Title.

K1150.B47 2013

341.4̖5—dc23

2013038767

ISBN: 978-0-415-71985-8

eISBN 978-1-315-79496-9

Typeset in Plantin

By Refi neCatch Limited, Bungay, Suffolk

vii

CONTENTS

Glossary xix

Introduction xxi

Table of conventions xxiii

Table of decisions, directives, regulations, treaties and conversions xxxiii

Table of UK legislation and international legislation xxxiv

Table of cases xxxvii

Volume II

Part I Collision

Chapter 1 International Convention for the Unifi cation of Certain Rules

of Law Relating to Collision between Vessels, 1910 3

1 The history of the Convention 3

2 The scope of application of the Convention 7

2.1 The type of accidents to which the Convention applies 7

2.2 Type of ships involved in the collision 8

2.3 The nationality of the ships 9

2.4 The waters in which the collision has taken place 11

2.5 The nationality of the ‘persons interested’ 11

3 The liability regime 12

3.1 The various regimes in force prior to the Convention 12

3.2 The allocation of the burden of proof 12

3.3 The liability regime under the Convention 13

3.3.1 The situations in which no liability is conceivable 14

3.3.2 Unilateral fault 16

3.3.3 Two or more ships at fault 17

3.4 The apportionment of damages to ships, their cargoes and

other properties in case of common fault 19

3.5 Joint liability in respect of damages caused by death or

personal injury 20

3.6 A collision caused by fault of a pilot 21

3.7 Apportionment of the loss in case of limitation of liability 23

4 Absence of formalities 23

5 Absence of legal presumptions 24

6 Limitation periods 25

viii

CONTENTS

6.1 The general rule 25

6.2 The rule applicable to the right of contribution 25

6.3 Suspension or interruption of prescription 26

6.4 Extension of the period of prescription 26

7 Post- collision obligations 27

8 The obligations of the contracting parties 29

9 Relation with other conventions or national laws 30

Chapter 2 International Convention on Certain Rules Concerning Civil

Jurisdiction in Matters of Collision, 1952 31

1 Introduction 31

2 Scope of application 32

3 Cases to which the Convention does not apply 32

4 Courts in which an action may be brought 33

4.1 Basis of jurisdiction according to the Convention 33

4.2 Prohibition on bringing further action 35

4.3 Choice of court agreements 36

5 Rules of procedure 36

5.1 Counterclaims 36

5.2 Actions against other parties to the proceedings 37

5.3 Exercise of jurisdiction in further actions 38

Chapter 3 International Convention for the Unifi cation of Certain Rules

Relating to Penal Jurisdiction in Matters of Collision or Other

Incidents of Navigation, 1952 39

1 Introduction 39

2 Scope of application 39

2.1 Nature of the event 40

2.2 Position of the persons involved 41

2.3 Place where the event has occurred 41

3 Circumstances in which the fl ag of the ship is relevant 41

4 Confl ict with other conventions 42

Part II Salvage

Chapter 4 International Convention for the Unifi cation of Certain Rules

of Law Relating to Assistance and Salvage at Sea, 1910 47

1 Introduction 47

2 Scope of application of the Convention 49

2.1 The nature of the services 49

2.2 The subject matter of the services 49

2.3 The place where the services have been rendered 52

2.4 By whom and to whom the services may be rendered 52

2.4.1 The nationality of the vessels rendering and receiving

the services 52

2.4.2 Vessels in the same ownership 53

ix

CONTENTS

2.4.3 Ships of war and government vessels 53

2.4.4 Services rendered by the tug to the tow 54

2.4.5 Services rendered by the crew of the vessel in danger

or by the pilot 55

2.4.6 Services rendered from the shore 56

3 The remuneration due to the salvor 57

3.1 The notion of remuneration 57

3.2 The conditions for the entitlement to a remuneration 59

3.2.1 The notion of danger 59

3.2.2 The useful result 60

3.3 The amount of the remuneration 61

3.4 The allocation of the burden of proof 63

3.5 When no remuneration is due 63

3.5.1 Prohibition by the vessel to whom assistance is

rendered 63

3.6 When the terms of the salvage agreement may be challenged 64

3.6.1 Agreement made under the infl uence of danger 64

3.6.2 Agreement vitiated or remuneration too large or too

small 65

3.7 From whom the salvage remuneration is due 66

3.7.1 The distribution of the remuneration amongst the

salvors of the ship in danger 66

3.7.2 The apportionment of the remuneration amongst

the owner and the persons in the service of the

salving ship(s) 66

3.7.3 The apportionment of the salvage remuneration

amongst the salvors of a ship in danger and the salvors

of human life 67

4 The obligation to render assistance to persons in danger 67

5 Limitation of actions 68

Chapter 5 International Convention on Salvage, 1989 69

1 Introduction 69

2 Scope of application 71

2.1 The geographical scope of application of the Convention 71

2.2 The nature of the operations to which the Convention applies 72

2.2.1 The defi nition of salvage operation and the exclusion

of the liability salvage 72

2.2.2 The defi nition of ‘vessel’ 73

2.2.3 The defi nition of ‘property’ 75

2.3 The vessels or other property excluded from the scope of the

Convention 76

2.3.1 Platforms and drilling units 76

2.3.2 State- owned vessels 77

2.4 The notion of danger 79

x

CONTENTS

3 Salvage operations controlled by public authorities 80

3.1 Possible confl ict between the Salvage Convention and other

conventions 81

3.2 UNESCO Convention 81

3.3 UNCLOS 83

3.4 Nairobi Convention 83

3.5 CLC and Fund Conventions 1992 and Bunker Oil

Convention 2001 84

4 General non- mandatory character of the rules of the Salvage

Convention 86

4.1 Mandatory provisions 87

4.1.1 Contract entered into under the undue infl uence of

danger 87

4.1.2 Abnormal amount of the reward 87

4.1.3 Duties to prevent or minimise damage to the

environment 88

4.1.4 Further mandatory provisions 88

4.2 Non- mandatory provisions 89

4.3 Provisions that do not concern the relationship between

salvors and owners of the salved property 89

5 Performance of salvage operations 90

5.1 Duties of the salvor and of the owner and master 90

5.1.1 Duties of the salvor 91

5.1.2 Duties of the owner and master of the vessel in

danger and of the owner of other property in danger 92

5.2 Rights and cooperation of States 94

5.2.1 Rights of coastal States 94

5.2.2 Cooperation of States Parties 96

5.3 Duty to render assistance 98

6 Rights of salvors 98

6.1 Conditions for reward 98

6.2 Criteria for fi xing the reward 100

6.3 By whom the salvage award must be paid 108

6.4 Special compensation 109

6.4.1 Out- of-pocket expenses 112

6.4.2 Fair rate for equipment and personnel 112

6.5 SCOPIC Clause 114

6.6 Apportionment between salvors 115

6.7 The apportionment between the owner, the master and

the crew 116

6.8 Salvage of persons 116

6.9 Services rendered under existing contracts 117

6.10 The effect of salvor’s misconduct 118

6.11 Prohibition of salvage operations 119

7 Claims and actions 120

7.1 Introduction 120

xi

CONTENTS

7.2 Matters arising after the completion of salvage operations 120

7.2.1 Maritime liens 120

7.2.2 Duty to provide security 121

7.2.3 Interim payment 122

7.2.4 Limitation of actions 123

7.2.5 Interest 124

7.2.6 Publication of arbitral awards 124

7.3 Cargoes subject to a special regime 125

7.3.1 State- owned cargoes 125

7.3.2 Humanitarian cargoes 126

Part III Maritime Liens and Mortgages

Chapter 6 International Convention for the Unifi cation of Certain Rules

Relating to Maritime Liens and Mortgages, 1926 131

1 The history of the Convention 131

2 The scope of application of the Convention 134

2.1 The exclusion of warships and government vessels 135

2.2 The type of vessels to which the Convention applies 135

2.3 The nationality of the vessel 135

2.4 The connection between the person against whom the claim

has arisen and the vessel on which the maritime lien may be

enforced 136

2.5 The variation by national law of the scope of application 138

3 The provisions on hypothèques 138

4 The individual maritime liens 140

5 National maritime liens 146

6 The properties on which the maritime liens can be enforced 147

6.1 The vessel 147

6.2 The appurtenances of the vessel 148

6.3 The freight 148

6.4 The ‘accessories’ of the vessel and freight 150

7 The ranking of claims secured by maritime liens inter se and in respect

of hypothèques 152

7.1 The ranking of claims amongst themselves 152

7.1.1 The ranking per voyage 152

7.1.2 The ranking of maritime liens arising in the same voyage 154

8 The extinction of maritime liens 155

8.1 The uniform rules 155

8.1.1 The period for which the liens remain in force 155

8.1.2 The date on which the extinction period commences 156

8.1.3 The rules applicable in respect of the running of the

period 157

8.1.4 Payments in advance 158

8.2 National extension of the limitation periods 158

9 The sale of the vessel 159

9.1 The forced sale 159

xii

CONTENTS

9.2 The voluntary sale 159

9.2.1 The droit de suite 159

9.2.2 When the droit de suite ceases to apply 160

Chapter 7 International Convention on Maritime Liens and

Mortgages, 1993 162

1 The history of the Convention 162

2 The scope of application of the Convention 165

3 Vessels to which the Convention applies 165

4 The provisions on mortgages, hypothèques and charges 166

4.1 The importance for shipping of such provisions 166

4.2 The scope of application of the provisions 166

4.3 The requirements for the recognition and enforcement of

mortgages, hypothèques and charges 167

4.4 The ranking of the registered securities inter se 168

4.5 Protection of mortgagees and of holders of hypothèques or charges

in case of change of registration of the vessel 169

4.6 Conditions for registration of vessels 171

5 Maritime liens 171

5.1 Claims secured by maritime liens 171

5.2 Claims set out in art. 4(1) not secured by maritime liens 174

5.3 Priority of the Convention maritime liens and of registered

securities 175

5.4 Ranking of maritime liens inter se 176

5.5 The extent to which limitation proceedings may affect priorities 177

5.6 National maritime liens and rights of retention 178

5.6.1 National maritime liens 178

5.6.2 Rights of retention 179

5.7 The droit de suite 180

5.8 Extinction of maritime liens 181

5.8.1 The length of the period and the action required in

order to prevent the extinction 181

5.8.2 The date of commencement of the period 182

5.9 The rule pursuant to which maritime liens travel with the

claims 182

6 Forced sale 183

6.1 The notice of the forced sale 184

6.1.1 The persons to whom the notice must be given 184

6.1.2 The form and publicity of the notice 185

6.1.3 The contents of the notice and how much time in

advance it must be given 185

6.2 The position of the claimant who has a right of retention 186

6.3 The effect of the forced sale on registered securities, maritime

liens and other encumbrances 186

6.4 The distribution of the proceeds of sale 187

xiii

CONTENTS

6.5 Freedom of States Parties to grant other priorities 189

6.6 The change in the registration of the vessel consequential to

her forced sale 190

7 Bareboat registration 190

Part IV Arrest of ships

Chapter 8 International Convention Relating to the Arrest of Sea-Going

Ships, 1952 197

1 The history of the Convention 197

2 The scope of application of the Convention 199

2.1 The notion of arrest 199

2.2 The ships that may be arrested 200

2.3 The ships to the arrest of which the Convention does not

apply 200

2.4 The situations in which a State may limit or exclude the

application of the Convention 201

3 The measures excluded from the scope of application of the

Convention 202

3.1 Forced sale 202

3.2 Insolvency proceedings 202

3.3 Limitation of liability 203

3.4 Penal arrest 203

3.5 Detention by governments or public authorities 203

3.5.1 MoU 204

3.5.2 The IMO Procedures for Port State Control 205

3.5.3 UNCLOS 205

3.5.4 EU directives 206

3.5.5 SOLAS 206

3.5.6 ISPS Code 207

3.5.7 International Code of Safety for High Speed Craft

(HSC Code) 207

3.5.8 International Management Code for the Safe

Operation of Ships 208

3.5.9 MARPOL 208

3.5.10 CLC 1992 209

4 Claims in respect of which a ship may be arrested 209

4.1 The burden of proof in respect of the claim for which the

arrest is applied for 221

5 Ships that may be arrested 223

5.1 Arrest of the ship in respect of which the claim has arisen or

of a sister ship 223

5.2 When the arrest of a ship not owned by the person liable is

permissible 226

5.2.1 Claims secured by maritime liens 226

5.2.2 Claims against the charterer 227

xiv

CONTENTS

5.3 Arrest of a ship owned by the charterer in respect of claims of

the owner of the chartered ship 233

5.3.1 Analysis of the relevant jurisprudence 233

5.3.2 Discussion of the problem from the perspective of the

Arrest Convention 237

5.4 Right of re- arrest and multiple arrest 239

5.4.1 The prohibition of re- arrest 239

5.4.2 The remedy in case of breach of the prohibition 241

5.4.3 The situations in which re- arrest is permitted 241

5.4.3.1 Release of the bail or other security 241

5.4.3.2 Existence of other good cause for maintaining

the arrest 241

6 Jurisdiction for the arrest 246

6.1 The requirement that the arrest be authorised by a judicial

authority 246

6.2 The requirement that such judicial authority be that of the

contracting State in which the arrest is made 248

6.3 Issues worthy of consideration in respect of art. 4 250

6.3.1 Jurisdiction before the arrival of the ship 250

6.3.2 Jurisdiction after the ship has sailed 251

6.3.3 Arrest pursuant to an order of a foreign court 251

6.3.4 Choice of the judicial authority of the State in the

jurisdiction of which the arrest is made 252

6.3.5 Jurisdiction for arrest when the court has no

jurisdiction on the merits 253

6.3.6 Jurisdiction for arrest when the court has jurisdiction

on the merits but the ship is not within its

jurisdiction 254

6.3.7 Jurisdiction for arrest when a decision on the merits

has already been obtained 255

6.3.8 Exclusive jurisdiction pursuant to the 1952 Convention

on Penal Jurisdiction and to UNCLOS 256

6.3.9 Lis pendens : related actions 257

7 Release of the ship from arrest 258

7.1 Release upon bail or other security 258

7.2 The linkage between proceedings for arrest and proceedings

on the merits 260

7.3 Failure to timely bring proceedings on the merits 262

7.3.1 Which court must fi x the time? 265

7.3.2 Agreement on the jurisdiction of a particular court or

on arbitration 267

8 Liability of the claimant for wrongful arrest 267

9 Jurisdiction on the merits 267

Chapter 9 International Convention on Arrest of Ships, 1999 274

1 History of the Convention 274