Phase II Maritime Law

Phase II Maritime Law

January 2012

Q.1Explain the provisions of UNCLOS with respect to internal waters, territorial sea, archipelagic waters, contiguous zone, Exclusive Economic zone and Continental Shelf of coastal states.Answer

PLEASE DRAW THE FIGURE DONE IN THE CLASS. Also, in the figure where LAND is written, under that please also add rivers, estuaries, lakes etc. And these form part of INLAND WATERS of the country.

UNCLOS defines major zones where different standards, rights and rules are applicable:

Internal Waters: all waters landward of the baselines (e.g. low-water line) and all harbours (Any law in force in the country shall also apply in its internal waters). The right of innocent passage does not exist in the internal waters. Territorial Sea: the sea within a distance of 12 nautical miles) from the baselines (Any law in force in the country shall also apply in its territorial waters as the country has TERRITORIAL SOVEREIGNITY. The right of innocent passage shall exist in the territorial waters. In the territorial sea, submarines and other underwater vehicles are required to navigate on the surface and to show their flag. Contiguous Zone: the sea beyond the territorial waters but within a distance of twenty-four nautical miles from the baselines (Within its contiguous zone, the country shall have the SOVEREIGN RIGHT to exercise all the powers which may be considered necessary to prevent contravention of any fiscal law or any customs, immigration or sanitary law and to make such contravention punishable. Exclusive Economic Zone (EEZ): the sea beyond the territorial waters but within a distance of two hundred nautical miles from the baseline. The country enjoys SOVEREIGN RIGHTS for the purpose of exploration and exploitation of marine resources for its own commercial benefit. Exploration and exploitation of marine resources includes fishing, oil and gas exploration etc. When UNCLOS refers to the continental shelf, however, it is using "continental shelf" as a legal term. While the EEZ captures a lot of the continental shelf for many countries, it does not capture all of it. As such, UNCLOS includes provisions for nations to lay claim to a continental shelf that exceeds 200 nautical miles from the baseline by establishing the foot of the continental slope. These provisions allow for an extension of an additional 150 nautical miles from the baseline or 100 miles from the 2,500 meter depth. Nations exercise over the shelf the SOVEREIGN RIGHTS for seabed mining and conducting marine scientific research.

Q.2Discuss the provisions of the Merchant Shipping Act 1958 as regards unseaworthy and unsafe ships. What are the provisions of MSA 1958 with regards to:-(a) Sending an un-seaworthy ship to sea and(b) Obligation of Owner and Master to crew with respect to seaworthiness.(c) Explain Certificate of Seaworthiness.

Answer

(a)

Section 334 in the MSA deals with unseaworthy ship and states that an unseaworthy ship shall not be sent to sea and gives details as follows:

Firstly, a ship is considered to be unseaworthy within the meaning of this Act when the materials of which she is made, her construction, qualifications of the master, the number, description and qualifications of the crew including officers, the weight, description and stowage of the cargo and ballast, the condition of her hull and equipment, boilers and machinery are not such as to render her in every respect fit for the proposed voyage or service.

Secondly, every owner or Master who sends or attempts to send an Indian ship to sea from any port in India in such an unseaworthy state that the life of any person is likely to be thereby endangered shall, be guilty of an offence under this sub-section.

(b)

The obligation of owner to crew with respect to seaworthiness

In every contract of service between the owner of an Indian ship and the master or any seaman thereof, and in every contract of apprenticeship whereby any person is bound to serve as an apprentice on board any such ship, there shall be implied an obligation on the owner that such owner and the master charged with the loading of such ship and preparing her for sea shall use all reasonable means to ensure the seaworthiness of the ship for the voyage at the time when such voyage commences, and to keep her in a seaworthy state during the voyage. In order to ensure that the requirement of seaworthiness is complied with, the Central Government may, either at the request of the owner or otherwise, arrange for a survey of the hull, equipment or machinery of any seagoing ship by a surveyor.

(c)

Contents of certificate of seaworthiness - The certificate states that the ship is seaworthy and properly equipped, fitted and ventilated; in the case of an un-berthed passenger ship, the number of passengers which she is capable of carrying; and in the case of a pilgrim ship, the number of pilgrims of each class which she is capable of carrying. The Certificate of Seaworthiness shall be in force for a period of one year from the date of issue or for such shorter period as may be specified therein and it shall be issued in duplicate.

Q.3Write short notes on the following:(a)London Dumping Convention.(b)International convention relating to Intervention on the high seas in case of Oil pollution casualties.

Answer

(a)

The London Dumping Convention (now known as London Convention) was adopted on 29 December 1972 in London and entered into force on 30 August 1975. The Convention established to control pollution of the sea by dumping of wastes which could create hazards to human health or to harm living resources and marine life, to damage amenities, and to interfere with other legitimate uses of the sea. It also encourages regional agreements supplementary to the Convention. It contains three Annexes: dumping of matter listed in Annex I is prohibited; dumping of matter listed in Annex II is allowable only by special permit; dumping of matter listed in annex III is allowable only by general permit.

It calls on Parties "to promote measures to prevent pollution by hydrocarbons, other matter transported other than for dumping, wastes generated during operation of ships etc., radioactive pollutants and matter originating from exploration of the sea bed."

(b)

The Torrey Canyon disaster of 1967 revealed certain doubts with regard to the powers of States, under public international law, in respect of incidents on the high seas. In particular, questions were raised as to the extent to which a coastal State could take measures to protect its territory from pollution where a casualty threatened that State with oil pollution, especially if the measures necessary were likely to affect the interests of foreign ship-owners, cargo owners and even flag States.

The Convention which resulted affirms the right of a coastal State to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate danger to its coastline or related interests from pollution by oil or the threat thereof, following upon a maritime casualty.

The coastal State is, however, empowered to take only such action as is necessary, and after due consultations with appropriate interests including, in particular, the flag State or States of the ship or ships involved, the owners of the ships or cargoes in question and, where circumstances permit, independent experts appointed for this purpose.

A coastal State which takes measures beyond those permitted under the Convention is liable to pay compensation for any damage caused by such measures. Provision is made for the settlement of disputes arising in connection with the application of the Convention.

The 1969 Intervention Convention applied to casualties involving pollution by oil. In view of the increasing quantity of other substances, mainly chemical, carried by ships, some of which would, if released, could cause serious hazard to the marine environment, the 1969 Brussels Conference recognized the need to extend the Convention to cover substances other than oil.The Conference adopted the Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil.

Q.4Write short notes on:(a)FAL convention and the list out the various forms those are mandatory.(b)Certificates to be carried in Special Trade Passenger Ships.

Answer

(a)

The Convention on Facilitation of International Maritime Traffic (FAL Convention) includes in its Standard 2.1 a list of documents which public authorities can demand of a ship and recommends the maximum information and number of copies which should be required. In its Annex, the International Maritime Organization (IMO) Convention on Facilitation of International Maritime Traffic (FAL) contains "Standards" and "Recommended Practices" on formalities, documentary requirements and procedures which should be applied on arrival, stay and departure to the ship itself, and to its crew, passengers, baggage and cargo.

IMO has developed Standardized Forms for seven of these documents, which are:

IMO General Declaration (FAL form 1). Cargo Declaration (FAL form 2). Ship's Stores Declaration (FAL form 3). Crew's Effects Declaration (FAL form 4). Crew List (FAL form 5). Passenger List (FAL form 6). Dangerous Goods (FAL form 7).

Two other documents may be required under the Universal Postal Convention and the International Health Regulations. The general declaration, cargo declaration, crew list and passenger list constitute the maximum information necessary. The ship's stores declaration and crew's effects declaration incorporate the agreed essential minimum information requirements.

(b)

Contents of certificate A

(1) The first of the certificates is called certificate A and shall be in the prescribed form and contain such particulars as may be prescribed. (2) Certificate A shall contain the following statements and particulars: (i) That the ship is seaworthy; (ii) That the ship is properly equipped, fitted and ventilated; (iii) The number of special trade passengers the ship is certified to carry; and (iv) Such other particulars as may be prescribed. (3) Certificate A shall remain in force for a period of one year from the date of issue or for such shorter period as may be specified therein.

Contents of certificate B

The second of the certificates is called certificate B and shall be in the prescribed from and shall state:

(a) the voyage which the ship is to make, and the intermediate ports (if any) at which she is to touch; (b) that she has the proper complement of officers and seamen; (c) that the master holds:(i) a certificate of survey and certificate A; or (ii) a passenger ship safety certificate accompanied by an exemption certificate, a special trade passenger ships safety certificate and a special trade passenger ship space certificate; (d) that she has on board such number of medical officers licensed in the prescribed manner and such number of attendants, if any, as may be prescribed;(e) that food, fuel and pure water over and above what is necessary for the crew, and the other things (if any) prescribed for special trade passenger ships or pilgrim ships, have been placed on board.(f) in the case of a special trade passenger ship, if the ship is to make a voyage in a season of foul weather specified as such, and to carry upper-deck passengers, that she is furnished with substantial bulwarks and a double awning or with other sufficient protection against the weather;(g) in the case of a special trade passenger ship, the number of cabin and special trade passengers embarked at the port of embarkation;

Q.5 (a) Describe the salient features of Lloyds standard Form of Salvage Agreement 2000.(b) List out the Minimum requirements for seafarers to work on board ships as per MLC 2006.

Answer

(a)

The new Lloyds standard form of salvage agreement, LOF 2000, was published on 1 September 2000. The form appears in a new format that is both clear and concise. It is on a single sheet with a new box layout format on the front and standard conditions A-L printed on the remainder of the front cover and on the reverse. Incorporated in the contract are the Lloyds Standard Salvage and Arbitration Clauses and the Lloyds Procedural Rules. Apart from changes to the format of the form a number of substantive changes have been made, the most significant of which are:

Rights of terminationClause G provides that both ship-owners and salvers have the right to terminate the contract where there is no longer any reasonable prospect of a useful result leading to a salvage reward. The previous LOF form only gave this right to the ship-owners.

Provision of technical information Clause F includes a new provision designed to assist salvers when dealing with complex cargoes such as chemicals. The clause provides that the salvers shall be entitled to all such information as they may reasonably require provided that such information is relevant to the performance of the salvage services and is capable of being provided without undue difficulty or delay.

The SCOPIC ClauseThe International Group of P&I Clubs and the International Salvage Union recommend their members to incorporate the SCOPIC clause in any salvage contract entered into. The aim was to agree a simplified framework for special compensation where the salvers would otherwise not be entitled to an award under the basic no cure no pay provision.

CurrencyLOF 2000 provides that unless the parties agree otherwise the currency of any arbitral award and security shall be United States dollars.

InterestLloyds Standard Salvage and Arbitration Clauses provide that in ordinary circumstances the salvers interest entitlement shall be limited to simple interest. However, the arbitrator may make an award of compound interest if the salvers have been deprived of their salvage remuneration or special compensation for an excessive period as a result of owners misconduct or in other exceptional circumstances.

(b)

No seafarer under the age of 18 years shall work at night, except when the seafarer is engaged in a training programme established by the ship-owner and approved by the Administration; or when the Administration has determined that the work performed due to its specific nature or under a recognized training programme is not detrimental to their health and well-being. Night is defined as a period starting no later than 2100 hours and ending no earlier than 5 a.m. Where seafarers under the age of 18 years are engaged at night, the beginning and end of this period shall be determined by the ship-owner. No seafarer under the age of 18 years shall be engaged or employed in any hazardous work, which is likely to jeopardize their health and safety. Every seafarer shall, prior to beginning work on a ship, hold a valid medical certificate issued by a duly qualified medical practitioner licensed at the place of examination and/or recognized by the competent authority at the place of examination, attesting that the seafarer is medically fit to perform the duties that they are to carry out at sea. A medical certificate solely concerning eyesight shall be issued by a person recognized by the competent authority at the place of examination, as qualified to issue such a certificate. Medical certificates shall state in particular that the seafarer concerned: a) has satisfactory hearing and sight, as well as colour vision where the nature of the work to be performed requires it; Is medically fit to perform the duties they are to carry out; and Is not suffering from any medical condition that is likely to be aggravated by service at sea or to render the seafarer unfit for such service or to endanger the health of other persons on board.

Q.6 (a) What is note of protest? How it is lodged and extended?(b) In case of suspected cargo damage during the voyage what documents are to be submitted while noting protest?

Answer

(a)

In any of the circumstances enumerated below it is advisable for the master to note a protest:

Whenever during the voyage the ship has encountered conditions of wind and sea which may result in damage to cargo. When from any cause the ship is damaged, or there is reason to fear that damage may be sustained. When through stress of weather it has not been practicable to adopt normal precautions in the matter of ventilation of perishable cargo. When cargo is shipped in such condition that it is likely to suffer deterioration during the voyage. In this case, however, the protest will not be effective unless the bills of lading were endorsed to show the condition of the cargo at the time of shipment. When any serious breach of C/P terms is committed by the charterer or his agent, such as refusal to load, unduly delaying loading, loading improper cargo, refusal to pay demurrage, refusal to accept B's/L in the form signed by the master, etc. When consignees fail to discharge cargo or take delivery thereof, and pay freight in accordance with C/P or B/L terms. In all cases of general average. Protest should be noted as soon as possible, certainly within 24 hours of arrival in port, and in the case of cargo protests before starting cargo operation. A declaration by the master of circumstances beyond his control which may give, or may have given, rise to loss or damage. Such declaration must be made before a notary public, magistrate, a consular officer, or other authority. Usually, statements under oath will be taken from the master and other members of the crew and these statements will have to be supported by appropriate log book entries. At the time of noting protest the master should reserve the right to extend it.

(b)

The important issue, whether you are acting for the claimant or the owner, is to preserve evidence following damage to the cargo. Insofar as heavy weather is concerned, this means preserving at the very least the following:

1. Contemporaneous records of the weather actually encountered;2. Copies of the weather forecasts relied on by the ship;3. Details of the stowage and lashing of the cargo;4. Details of the damage to the cargo and to the ship;5. All the navigational records such as charts, GPS logs, course recorder, AIS download and ECDIS download, which reflects the course and speed of the vessel and the masters response to the bad weather;6. The stability data and, in particular, the vessels GM at the time of the damage. A high GM means that the ship will revert to the upright position quickly if pushed over by a wave. An excessive GM causes massive acceleration on the ship and cargo and can lead to damage in itself; and7. The VDR data.

As in any recovery action it is the party with the best evidence that tends to succeed and if the evidence is not timely gathered it is often lost which creates a problem for both claimant and owner.

Q.7 (a) Explain the reasons for a ship to be classed with a classification society.(b) Describe the role of Recognised Organization in survey and certification of ships under the authority of Flag state.

Answer

(a)

In the second half of the 18th century, London merchants, ship-owners, and captains often gathered at Edward Lloyds coffee house to gossip and make deals including sharing the risks and rewards of individual voyages. This became known as underwriting after the practice of signing one's name to the bottom of a document pledging to make good a portion of the losses if the ship didnt make it in return for a portion of the profits. It did not take long to realize that the underwriters needed a way of assessing the quality of the ships that they were being asked to insure. This attempted to classify the condition of the ships hull and equipment. At that time, an attempt was made to classify the condition of each ship on an annual basis. The condition of the hull was classified A, E, I, O or U, according to the state of its construction and its adjudged continuing soundness (or lack thereof). Equipment was G, M, or B: simply, good, middling or bad. In time, G, M and B were replaced by 1, 2 and 3, which is the origin of the well-known expression 'A1', meaning 'first or highest class'. The purpose of this system was not to assess safety, fitness for purpose or seaworthiness of the ship. It was to evaluate risk.

In order to be registered, an ocean-going ship must be certified to be of a particular type and size and be maintained to certain minimum standards. While most states (national governments) do not insist that ships be "classed," without a "class" category there would be considerable difficulties in operating a ship, as "class" is a requirement of insurance companies and shippers using the vessel.

(b)

Recognised Organizations

SOLAS and the other International Conventions permit the flag Administration to delegate the inspection and survey of ships to a Recognised Organization (RO). This is in recognition of the fact that many flag Administrations do not have adequate technical experience, manpower or global coverage to undertake all the necessary statutory inspections and surveys using its own staff.

The RO is responsible and accountable to the flag Administration for the work that it carries out on its behalf. The principles of the inspection and survey work are to a very large extent the same as in respect of classification surveys, that is, the verification by the RO that a ship is in compliance with applicable requirements at the time of the survey or inspection. The scopes of these inspections and surveys are laid down by the relevant national laws based on International Conventions to which the Government is a signatory, together with additional instructions that may be issued by the flag Administration.

Q.8 (a) Explain the obligations of the carrier in respect of dangerous cargo as per Hague rules.(b) Explain the immunities granted to the carrier in respect of dangerous cargo as per Hague rules.

Answer

(a)

The obligations are generally referred to in Art. II of Hague Rules and Hague - Visby Rules.

Article II states:

The "carriage of goods" relates to ...the period from the time when the goads are loaded on to the time they are discharged from the ship" (Art. I). Therefore, the responsibilities commence when the goods are loaded and end when they are discharged, i.e., this probably includes the actual loading and discharging operation.

It also allows a carrier to agree to responsibility and liability related to the goods before loading on and after discharging from the vessel. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to: (a) Make the ship seaworthy; (b) Properly man, equip and supply the ship; (c) Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.

(b)

As regards to immunities, it is applicable for dangerous cargo and, it reinforces the implied term at common law that the shipper will not ship dangerous goods without the consent of the carrier. The Rule provides that when such goods are shipped without the knowledge or consent of the carrier, not only is the carrier entitled to neutralize them at the expense of the shipper, and without any obligation to compensate the cargo-owner, but the shipper is also liable for any loss or damage resulting from their shipment.

Q.9 (a) Define a Port of refuge. List out the various circumstances under which Master may call port of refuge.(b) Describe the procedures to be followed upon deviating to port of refuge and action to be taken if general average has arisen.

Answer

(a)

A port of refuge is a port or place that a vessel diverts to when her master considers it unsafe to continue the voyage due to a peril that threatens the common safety. In November 2003 the IMO assembly adopted two resolutions addressing the issue of port of refuge for ship in distress.

Resolution A949(23):- The guidelines recognize that when a ship has suffered an incident, the best way of preventing damage or pollution from its progressive deterioration is to transfer its cargo and bunkers, and to repair the casualty. Such operation is best carried out at place of refuge. However to bring such ship at place of refuge may endanger the coastal state economically as well as environmentally. Therefore granting access to port of refuge could involve a political decision which can only be taken on case by case basis.

Resolution A950 (23):- MARITIME ASSISTANCE SERVICES (MAS) - recommends that all coastal states should establish MAS. The principal purpose would be to receive the various reports, consultations and notification required in a number of IMO instrument, monitoring a ships situation. If such a report indicates that a ship may be in need of assistance, the MAS serves as a point of contact and centre for exchange of information between the ship and coastal state.

(b)

Below is the general procedure every ship would go through after giving a Port of Refuge call:

After giving port of refuge signal, the master would inform the owners and charters about the condition of the ship. Ships exact position would be noted After giving out the call for port of refuge, a separate record is maintained for all the additional expenditure that would be involved in the process The ship would seek for health clearance. An agent would be appointed who would inform the port authority, pilot, local P&I surveyors, port health department, immigrations, customs and other necessary services required. The vessel would then enter as under average. Once the ship arrives at the port safely, the owners and charters would declare it general average. A note of protest is issued, if required. The classification society is informed. In case there is any damage to the ships structure, the insurance agent is informed. In case there is damage to the ships cargo, P&I club is informed. If required, arrangement of cargo discharge, trans-shipment or warehousing of cargo is made. GA bond (general average bond) and GA (general average) guarantee are provided in case the voyage is terminated. Once the surveyors are finished with their reports, tenders are called for repairs in association with Salvage Association Surveyor and Insurance agent. Completion of repairs is followed by another inspection by the class. If the ship is found sea worthy an interim certificate is issued for the final certificate. Once the ship is allowed to continue for voyage, reloading of cargo is carried out. The note of protest would be extended with the details of damage and repairs. All bills are then paid by the port agent. Relevant documents are sent to the owners for onward transmission to average adjuster. The ship enters vessel outwards on receiving custom outward clearance. The voyage can then be safely continued.

May 2012

Q.1 (a) Differentiate between Passage, and Innocent Passage as stipulated under Article 18 and 19 of UNCLOS 1982 to which India is party.(b) State the duties and rights of protection of the Coastal State as prescribed in Article 24 and 25 of the UNCLOS 1982.

Answer

(a)

Passage means navigation through the territorial sea for the purpose of traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or proceeding to or from internal waters or a call at such roadstead or port facility. Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by forcemajeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress.

Meaning of innocent passage

Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations; any exercise or practice with weapons of any kind; any act aimed at collecting information to the prejudice of the defence or security of the coastal State; any act of propaganda aimed at affecting the defence or security of the coastal State; the launching, landing or taking on board of any aircraft; the launching, landing or taking on board of any military device; the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; any act of wilful and serious pollution contrary to this Convention;

(b)

Duties of the coastal State

The coastal State shall not hamper the innocent passage of foreign ships through the territorial sea except in accordance with this Convention. In particular, in the application of this Convention or of any laws or regulations adopted in conformity with this Convention, the coastal State shall not:

impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage; or discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State. The coastal State shall give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea.

Rights of protection of the coastal State

The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent. In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or such a call is subject. The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea, the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.

Q.2 (a) State the salient features of Construction Structure, Stability and installation with respect of Chapter II -1 of SOLAS 1974 as amended.(b) Enumerate the key elements of SOLAS Chapter V Safety of Navigation which assists in enhancing maritime safety.

Answer

(a)

Chapter II-1 - Construction - Subdivision and stability, machinery and electrical installations

The subdivision of passenger ships into watertight compartments must be such that after assumed damage to the ship's hull the vessel will remain afloat and stable. Requirements for watertight integrity and bilge pumping arrangements for passenger ships are also laid down as well as stability requirements for both passenger and cargo ships. The degree of subdivision - measured by the maximum permissible distance between two adjacent bulkheads - varies with ship's length and the service in which it is engaged. The highest degree of subdivision applies to passenger ships. Requirements covering machinery and electrical installations are designed to ensure that services which are essential for the safety of the ship, passengers and crew are maintained under various emergency conditions.

(b) Chapter V identifies certain navigation safety services which should be provided by Contracting Governments and sets forth provisions of an operational nature applicable in general to all ships on all voyages. This is in contrast to the Convention as a whole, which only applies to certain classes of ship engaged on international voyages. The subjects covered include the maintenance of meteorological services for ships; the ice patrol service; routeing of ships; and the maintenance of search and rescue services. This Chapter also includes a general obligation for masters to proceed to the assistance of those in distress and for Contracting Governments to ensure that all ships shall be sufficiently and efficiently manned from a safety point of view. The chapter makes mandatory the carriage of voyage data recorders (VDRs) and automatic ship identification systems (AIS).

Q.3 (a) State the key regulations of MARPOL 73/78 Annex I relating to prevention of pollution by oil if complied with by cargo ships including tankers would lead to the issuance of IOPP Certificate.(b) Briefly explain the Tier regime of compensation under the CLC 1992/Fund 1992 and HNS 2010 protocol.

Answer

(a)

The continuous strive of prevention and reduction of the ship-generated pollution of the seas by oil is the core objective setting of Annex I of MARPOL 73/78. Annex I applies to all oil tankers of 150 GT and above, and every other ship of 400 GT and above.

Annex I gives requirements for survey and issuance of International Oil Pollution Prevention Certificates (IOPP) and regulations related to:

Control of discharge of oil originating from machinery spaces Control of discharge of oil originating from cargo spaces Ballast tank arrangements and locations Double Hull requirements SOPEP/SMPEP

(b)

The Civil Liability Convention (CLC) IS THE first Tier of oil pollution compensation mechanism. CLC only deals with how much will an oil tanker owner pay, if his tanker is involved in a pollution incident. An oil pollution incident means when the oil has actually come out into the marine environment. This means, for example, if in a collision oil has come out only from one of the tankers, then the oil tanker owner from whose tanker the oil has come into the marine environment, will have to pay. Also, CLC is a compensation mechanism only and not a punishment or a fine. This means that after an oil pollution incident, the oil tanker will only pay if there is a claim. If however, there is no claim, then the oil tanker owner does not pay. CLC is applicable to persistent oils only [oils, which have characteristics of persisting (floating) on the surface of water meaning different grades of crude oil when carried as cargo, as well as bunker pollution from oil tankers only).

CLC requires the following:

(i) Strict Liability this means that when there is a claim, then the tanker owner has to pay without even waiting to find out who was at fault that resulted in the pollution incident. The oil tanker owner can later claim from the party at fault, but he has to pay now to settle the claims. Only in the following three cases the oil tanker will not have to pay anything:

Act of God. Act of war or sabotage. When the relevant Government authorities have not acted responsibly in maintaining the navigational aids / depths of water within their area and this leads to a pollution incident.

(ii) Compulsory Insurance Cover the oil tanker owner is required to maintain a compulsory insurance cover to cover his part of payment in an oil pollution incident. He gets this insurance cover from his P & I Club (liability insurance). After getting the required insurance cover, the oil tanker owner approaches the Flag State, who issues the oil tanker a CLC Certificate, which is always kept on board. The meaning of CLC Certificate on board is that the money is standing by with the P & I Club and will be paid by them to settle all claims after any oil pollution incident.

The maximum amount to be paid by the oil tanker owner is as follows:

Up to 5000 GT = 4.51 million SDR.5001 GT 140,000 = (4.51 million SDR + 631 SDR/GT) SDR.> 140,000 GT = 89.77 million SDR.

Two years after CLC, it was realised that there needs to be more money in case the oil pollution incident is so huge that the total claims amount to be greater than what the oil tanker owner pays under CLC. Member countries at IMO decided to involve the oil importers by asking them to make an annual contribution to a FUND so that additional money is always standing by and to be given to people who make a claim after an oil pollution incident. Therefore, the Fund Convention was created and this is known as the SECOND Tier of the oil pollution compensation mechanism. Fund Convention requires only the oil importers who import 150,000 MT or more of oil per annum to make an annual contribution to a Fund known as International Oil Pollution Compensation Fund (IOPC Fund with headquarters in London). Therefore, any person / organisation who has imported 150,000 MT of oil in the previous year is called a contributor and therefore the ENTIRE amount of oil imported by him is used to calculate his contribution and this is known as the contributing oil (for example, if a person has imported 175,000 MT of oil in the previous year then he qualifies as a contributor and the entire amount of 175,000 MT will be used to calculate his contribution to the IOPC Fund. His contributing oil will be 175,000 MT. Please do not make the mistake by thinking that only 25000 MT will be used for calculation. 150,000 MT figure is used only to decide whether a person is a contributor or not). Also, the maximum amount available for EVERY INCIDENT PER YEAR is 203 million SDR and this includes the payment by the oil tanker owner under the CLC (CLC + FUND = 203 million SDR).

In 2000, the Fund Convention was amended to include a Supplementary Fund but it was kept OPTIONAL for countries to follow it and this forms the THIRD Tier of the oil pollution compensation mechanism [for example, INDIA is party to CLC and Fund (first and second tier) but NOT a part to the Supplementary Fund (the third tier)]. Therefore, if we include the Supplementary Fund also, the TOTAL amount available for EVERY INCIDENT PER YEAR IS 750 million SDR [CLC + FUND + Supplementary Fund = 750 million SDR (one would appreciate that this will ONLY be applicable in the few countries who are party to the Supplementary Fund also)].

Reference regarding the HNS Protocol is WRONG here because HNS Protocol exists ONLY with the OPRC. Ideally, the correct mention should have been HNS Convention. But, well answer as asked.

OPRC - HNS[footnoteRef:1] PROTOCOL [1: HNS Hazardous and Noxious Substances]

The Protocol on Preparedness, Response and Co-operation to pollution Incidents by Hazardous and Noxious Substances, 2000 (OPRC-HNS Protocol) follows the principles of the International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 (OPRC) and was formally adopted by States already Party to the OPRC Convention at a Diplomatic Conference held at IMO headquarters in London in March 2000. The Protocol entered into force on 14 June 2007.

Q.4Write short notes on the following:-(a)Suppression of Unlawful acts against safety of maritime navigation convention 1988 and 2005 protocol.(b)Intervention on the High Seas Convention 1969.(c)Maritime Labour Convention 2006.

Answer

(a)

PLEASE REFER TO THE NOTES AND DISCUSSION IN THE CLASS.

(b)

PLEASE REFER TO PREVIOUS ANSWER Q. 3 (b) of January 2012.

(c)

The Maritime Labour Convention (MLC) came into force on 20th August 2014. MLC has given a very broad definition of the term seafarer it basically says that any person who is on a gainful employment on a ship (gainful employment you work and in return you are paid wages) is a seafarer. It therefore applies to everyone from the Master to the hotel staff on cruise ships. Also, for the purpose of MLC, New Ship means any ship whose keel is laid after the entry into force of the convention (i. e. after 20th August 2013).

Layout of MLC

The MLC is divided into FOR layers as follows:

1. Articles.2. Regulations.3. Code A (Mandatory).4. Code B (non-mandatory it acts as a guideline to follow the mandatory Code A).

The Codes are divided into FIVE chapters known as Titles as follows:

TITLE 1 Minimum Requirements to Work on ShipsThis deals with the minimum age requirements, such as (a) no person (including the cadets) below the age of 16 years is allowed to work on ships (b) no person below the age of 18 years is allowed to work at night where the night period is defined as 2100 hrs to 0500 hrs.

TITLE 2 Conditions of EmploymentThis deals with contractual conditions, hours of work and rest, leave, repatriation and a written undertaking by the owner that he is responsible to medical and compensation in case of injury and death. Hours of work are maximum 14 hrs in 24 hour period and 72 hours in 7 day period; hours of rest minimum 10 hours in 24 hours period and 77 hours in 7 day period.

TITLE 3 Accommodation, Recreation, Food and CateringAccommodation On new ships (a) no more twin-sharing cabins (including for cadets) (c) advised to provide attached toilets, but if common toilets provided then very strict specifications to be adhered to (c) minimum height of deck-head in accommodation increased; for existing ships acoustic and vibration levels to be monitored regularly.

Recreation for the first time the owner has a legal responsibility to provide recreation onboard, access to internet and e-mail and organise conveyance in ports from time to time.

Food and Catering the cook must be trained and certified by the Flag State.

TITLE 4 Medical and Social ProtectionThe existing medical facilities have been enhanced to include dental and eye treatments.

TITLE 5 Compliance and EnforcementCompliance is the responsibility of the Flag State. They will conduct labour survey on 14 parameters based on Title 1 to Title 4 and issue to the ship Declaration of Maritime Labour Compliance (DMLC) along with a Maritime Labour Certificate (ML Certificate), which will be statutory certificate and valid for 5 years with annual, intermediate and renewal labour surveys. It is important to note that the ML Certificate is invalid in the absence of DMLC.Enforcement is the responsibility of PSC. They have volunteered to enforce it for the benefit of the world seafarers and have thus given the powers to detain a ship if the MLC requirements are not found to be met.

Also, every seafarer has the right to complain to Flag State or PSC, but first has the obligation to follow the Complaints Procedure of the Company, which will be part of the Labour Manual onboard.

Q.5Stipulate any three of the provisions under Merchant Shipping Act, 1958 with respect to the following:

(a) Form and contents of agreement under Section 101.(b) Engagement between seamen and masters of ship other than Indian ship section 114.(c) Master to take charge of effects of deceased seamen Section 152.(d) Entries which are required to be made in official log books Sec 214.

Answer

(a)

Form and contents of the agreement

An agreement with the crew shall be in the prescribed form, and shall be dated at the time of the first signature thereof, and shall be signed by the owner or agent and the master] before any seaman signs the same. The agreement with the crew shall contain as terms thereof the following particulars, namely:

the name of the ship or ships on board which the seaman undertakes to serve; either the nature and, as far as practicable, the duration of the intended voyage or engagement or the maximum period of the voyage or engagement, and the places or parts of the world, if any, to which the voyage or engagement is not to extend; the number and description of the crew of different categories in each department; the time at which each seaman is to be on board or to begin work; the capacity in which each seaman is to serve; the amount of wages which each seaman is to receive; a scale of the provisions which are to be furnished to each seaman, such scale being not less than the scale fixed by the Central Government and published in the Official Gazette; a scale of warm clothing and a scale of additional provisions to be issued to each seaman during periods of employment in specified cold regions; any regulations as to conduct on board and as to fines or other lawful punishments for misconduct, which have been sanctioned by the Central Government as regulations proper to be adopted, and which the parties agree to adopt; payment of compensation for personal injury or death caused by accident arising out of and in the course of employment; where it is agreed that the services of any seaman shall end at any port not in India, a stipulation to provide him either fit employment on board some other ship bound to the port at which he was shipped or to such other port in India as may be agreed upon, or a passage to some port in India free of charge or on such other terms as may be agreed upon; stipulations relating to such other matters as may be prescribed.

(b) When the master of a ship other than an Indian ship engages a seaman at any port in India to proceed to any port outside India, he shall enter into an agreement with such seaman, and the agreement shall be made before a shipping master in the manner provided by MSA for the making of agreements in the case of foreign going Indian ships. The master of a ship other than an Indian ship shall give to the shipping master a bond with the security of some approved person resident in India for such amount as may be fixed by the Central Government in respect of each seaman engaged by him at any port in India and conditioned for the due performance of such agreement and stipulations, and for the repayment to the Central Government of all expenses which may be incurred by it in respect of any such seaman who is discharged or left behind at any port out of India and becomes distressed and is relieved under the provisions of this Act: Provided that the shipping master may waive the execution of a bond under this section where the owner of the ship has an agent at any port in India and such agent accepts liability in respect of all matters for which the master of the ship would be liable if he were to execute a bond under this section or may accept from the agent such security as may be approved by the Central Government. The fees fixed under section 90 shall be payable in respect of every such engagement, and deductions from the wages of seamen so engaged may be made to the extent and in the manner allowed under the said section 90.

(c)

If any seaman or apprentice engaged on any ship, the voyage of which is to terminate in India, dies during that voyage, the master of the ship shall report the death to the next-of-kin of the seaman or apprentice and to the shipping master at his port of engagement and shall take charge of any money or effects belonging to the seaman or apprentice which are on board the ship.

The master shall thereupon enter in the official log book the following particulars, namely:

a statement of the amount of money and a detailed description of the other effects; a statement of the sum due to the deceased for wages and of the amount of deduction, if any, to be made from the wages. The said money, balance of wages and other effects are in this Act referred to as the property of the seaman or apprentice.

(d)

The master of a ship for which an official log is required shall enter or cause to be entered in the official log book the following matters, namely:

every conviction by a legal tribunal of a member of his crew and the punishment inflicted; every offence committed by a member of his crew for which it is intended to prosecute or to enforce a forfeiture or exact a fine, together with such statement concerning the reading over of that entry and concerning the reply (if any) made to the charge as is by this Act required; every offence for which punishment is inflicted on board and the punishment inflicted; a report on the quality of work of each member of his crew, or a statement that the master declines to give an opinion thereon with statement of his reasons for so declining; every case of illness, hurt or injury happening to a member of the crew with the nature thereof and the medical treatment adopted (if any); every case of death happening on board and the cause thereof, together with such particulars as may be prescribed; every birth happening on board, with the sex of the infant, the names of the parents and such other particulars as may be prescribed; every marriage taking place on board with the names and ages of the parties; the name of every seaman or apprentice who ceases to be a member of the crew otherwise than by death, with the place, time, manner and cause thereof; the wages due to any seaman or apprentice who dies during the voyage and the gross amount of all deductions to be made; the money or other property taken over of any seaman or apprentice who dies during the voyage; any other matter which is to be or may be prescribed for entry in the official log.

Q.6Differentiate between Standards and the recommended practices under FAL Convention, 1965 with respect to the following (a)Arrival, stay and Departure of ship(b)Arrival, stay and Departure of cargo

Answer

(a)

Arrival, stay and departure of the ship

It contains the provisions concerning the formalities required of ship-owners by the public authorities on the arrival, stay and departure of the ship and shall not be read so as to preclude a requirement for the presentation for inspection by the appropriate authorities of certificates and other papers carried documents made available by the ship pertaining to its registry,

Standard

Public authorities shall not require for their retention, on arrival or departure of ships to which the Convention applies, any documents other than those covered by the present section. The documents in question are: - General Declaration - Cargo Declaration - Ship's Stores Declaration - Crew's Effects Declaration - Crew List - Passenger List - Dangerous Goods Manifest - The document required under the Universal Postal Convention for mail - Maritime Declaration of Health - Security-related information as required under SOLAS regulation XI-2/9.2.2 - Advance Electronic Cargo Information for customs risk assessment purposes - Advanced Notification Form For Waste Delivery to Port Reception Facilities, when communicated to the Organization.

Recommended practice Public authorities should shall develop procedures for the lodgement of to use pre-arrival and pre-departure information in order to facilitate the processing of such information required by public authorities for the expedited subsequent release/clearance or cargo and persons release/clearance of cargo and clearance of persons. National legislation should specify the conditions for the lodgement of pre-arrival and pre-departure information. With regard to the point in time of transmission of the pre-arrival information, it should not normally be set substantially before the moment the ship has left the country of departure. Public authorities should, for the submission of Advance Electronic Cargo information for customs risk assessment purposes, take into account the time limits specified. Public authorities should not require the lodgement of a separate General Declaration, Cargo Declaration, Crew List and Passenger List and Dangerous Goods Manifest if the data elements contained in these documents are included in the pre-arrival or pre-departure information or in the ship's manifest.

Standard

Public authorities shall develop systems for the electronic transmission of data for the lodgement of pre-arrival and pre-departure information. The General Declaration shall be the basic document on arrival and departure providing data required by public authorities relating to the ship.

Recommended Practice

The same form of General Declaration should be accepted for both the arrival and the departure of the ship. In the General Declaration, public authorities should not require more than the following data: name, type and IMO number of ship; call sign; flag State of ship; voyage number; particulars regarding registry; particulars regarding tonnage; name of master; name and contact details of ship's agent; brief description of the cargo; number of crew; number of passengers; brief particulars of voyage; date and time of arrival, or date of departure; port of arrival or departure; estimated draught on arrival and departure; position of the ship in the port; the ship's requirements in terms of waste and residue reception facilities; last port of call/next port of call.

Arrival, stay and departure of the cargo

Standard

The Cargo Declaration shall be the basic document on arrival and departure providing data required by public authorities relating to the cargo. However, particulars of any dangerous cargo may also be required to be furnished separately.

Recommended Practice

In the Cargo Declaration, public authorities should not require more than the following data:

(a) on arrival name and IMO number of ship flag State of ship name of master call sign voyage number port of loading port where report is made freight34 container identification, where appropriate; marks and numbers; number and kind of packages; quantity and description of the goods or, if available, the HS Code* transport document numbers for cargo to be discharged at the port in question ports at which cargo remaining on board will be discharged original ports of shipment in respect of goods shipped under multimodal transport documents or through bills of lading. (b) on departure name and IMO number of ship flag State of ship name of master call sign35 voyage number port of discharge

Standard

In respect of cargo remaining on board, public authorities shall require only brief details of the minimum essential items of information to be furnished. Public authorities shall accept that the Cargo Declaration is either dated or signed by the master, the ship-owner issuing the transport document, the ship's agent or some other person duly authorized by the master. Public authorities shall accept in place of the Cargo Declaration a copy of the ship's manifest provided it contains at least the information required.

Recommended Practice

As an alternative public authorities may accept a copy of the transport document signed or authenticated accordingly, or certified as a true copy, if the nature and quantity of cargo make this practicable.

Q.7(a)State the criteria for reward of Salvage services as specified in Article 13 of the Salvage convention 1989.(b)Explain Special Compensation P&I Clubs (SCOPIC) clause.

Answer

(a) and (b)

FOR THE PURPOSE OF EXPLANATION ON OWN WORDS, THE PARTS HAVE BEEN ANSWERED TOGETHER. ON UNDERSTANDING THE WHOLE CONCEPT, YOULL BE ABLE TO FORMULATE THE ANSWER FOR THIS QUESTION SEPARATELY AS REQUIRED.

The law of salvage is a concept in maritime law which states that a person who recovers another person's ship or cargo after peril or loss at sea is entitled to a reward in proportion with the value of the property so saved. The concept has its origins in maritime history, with the basis that a person would be putting himself and his own vessel at risk to recover another and thus should be appropriately rewarded. A related consideration was widespread piracy; a vessel in peril could very well be left for pirates if the owner did not generously reward a potential and an honest salver.

So, the first incentive is mentioned in Article 13 of the Salvage Convention, which lists the criteria to be weighed in the balance in assessing a salvage award. It provides:

The reward shall be fixed with a view to encouraging salvage operations, taking into account the following criteria without regard to the order in which they are presented below:

the salved value of the vessel and other property; he skill and efforts of the salvers in preventing or minimizing damage to the environment; the measure of success obtained by the salver; the nature and degree of the danger; the skill and efforts of the salvers in salving the vessel, other property and life; the time used and expenses and losses incurred by the salvers; the risk of liability and other risks run by the salvers or their equipment; the promptness of the services rendered; the availability and use of vessels or other equipment intended for salvage operations; the state of readiness and efficiency of the salver's equipment and the value thereof.

Secondly, the payment of a reward fixed according to paragraph 1 shall be made by all of the vessel and other property interests in proportion to their respective salved values and, the rewards, exclusive of any interest and recoverable legal costs that may be payable thereon, shall not exceed the salved value of the vessel and other property.

There are three points to particularly note from Article 13. The second criteria, the skill and effort of the salvers in preventing or minimising damage to the environment was specifically introduced by the 1989 Convention to encourage salvers to go to the assistance of ships which threatened damage to the environment. However it should be noted the salver has to prove that he actually prevented damage to the environment. A 'threat' without proof, but for the services, that damage to the environment would have occurred, is insufficient. Proof of damage to the environment is not easy because any reward received is restricted by the value of the property salved. In cases where there is a threat of damage to the environment values are often low and the expense of salvage high. In most of the cases, salvers only received the bare minimum. Any award under Article 13 is paid by ship and cargo pro rata to value so they bear any award enhanced by reason of the second criteria the skill and effort of the salver in preventing damage to the environment. The insurers of ship and cargo customarily pay such awards notwithstanding they do not insure an owners liability for damage to the environment.

The Second incentive Special Compensation introduced in Article 14 to the Salvage Convention. It provides as follows:

If the salver has carried out salvage operations in respect of a vessel which by itself or its cargo threatened damage to the environment and has failed to earn a reward under Article 13 at least equivalent to the special compensation assessable in accordance with this article, he shall be entitled to special compensation from the owner of that vessel equivalent to his expenses as herein defined.

There were a number of issues in giving the special compensation, as per Article 14, for saving the environment. To name a few issues:

Firstly, it will be noted that for this paragraph the salver does not have to succeed in protecting the environment, he simply has to be involved in a salvage operation in which the casualty threatens damage to the environment. Secondly, it will be seen that the salver has to carry out salvage operations in respect of a vessel which by itself or its cargo threatened damage to the environment. What do we mean by threatened? Thirdly, unlike Article 13 salvage award (which is paid by the ship and cargo and their property insurers), special compensation (as per Article 14) is payable by the ship-owner alone who is insured for this risk and indemnified by his P&I insurer.

So, the solution was reached by introducing SCOPIC (Special Compensation P&I Club) Clause.

SCOPIC sets out the contractual position between the salvers and the ship-owner, but do not set out the position of the P&I clubs and the ships underwriters (the Hull and Machinery insurers) who, while insurers of the ship-owners, are not parties, and therefore not bound, to the contract. The SCOPIC clause is a voluntary addition to the LOF contract which can be used by agreement between the parties at the time they contract. In practice, it is nearly always used by professional salvers particularly when there is a threat of danger to the environment and low values. It has effectively replaced Article 14 in all LOF cases.

In considering the clause, it is important to remember that it was designed to have the same intent as Article 14 to encourage salvers to go to the assistance of ships that threaten damage to the environment and to follow it as closely as possible but remove the problems that were giving rise to so much difficulty. In describing SCOPIC it is therefore useful as we go along, to look at the problems that arose from Article 14 and see how the SCOPIC Clause set out to resolve them.

The SCOPIC Clause is lengthy and complex and not easy to digest. One of the best ways to understand it is to look at its Basic Elements (below):

1. SCOPIC is designed to be an add on to LOF and will only be included as part of that contract if specifically agreed in writing between the salver and ship owner (Master). If SCOPIC is not incorporated into the contract then Article 14 (if relevant) will apply. 2. When incorporated into the contract, SCOPIC replaces Article 14 of the Salvage Convention which thereafter will no longer be applicable. However, SCOPIC is incorporated into the contract but not specifically invoked (used or brought into play) or is later terminated, the salver will have neither the protection of Article 14 or of SCOPIC. 3. Even when SCOPIC is incorporated into the contract, its remuneration provisions will not begin to bite until the Clause is specifically invoked (used) in writing by the salver. Further, the calculation of SCOPIC remuneration will not begin until that point.

One of the main problems with Article 14 was its trigger mechanism, a threat of damage to the environment. What was a threat? Did it have to be an actual threat or was it sufficient for it to be a reasonably perceived threat? What were coastal waters or waters adjacent thereto? How serious the threat to the environment had to be? The designers of SCOPIC wanted to avoid all these problems. So what other trigger mechanism could be used? It was concluded that the simplest and most unchallengeable trigger mechanism was to give the salver the sole and unfettered power, whatever the circumstances and at any time of his choosing, to specifically invoke (bring into play) the SCOPIC clause in writing. There is no longer any need to prove there is a threat of damage to the environment. It is important to remember, unlike Special Compensation under Article 14 (of Salvage Convention), which incorporates all the work of the salver from the very beginning of the case, that the assessment of SCOPIC remuneration does not begin until it is invoked (brought into play) in writing. Any work done before that point is not taken into account in its assessment. Thus, while the salver has the option to invoke (use) the clause at any time, it is in his interests to make the decision as soon as possible (the decision whether there is a threat to the environment in the salvage operation and to what extent his work will increase in the whole salvage operation).

Once SCOPIC has been invoked the ship-owner must provide security in the sum of USD 3 million. This provision was made for the salvers protection and on their insistence, for without it there is no effective means of enforcing payment. While Article 21 of the Salvage Convention provides that security should be provided for a salvers claim, it is not due until the end of the salvage operations and, in the case of security for Special Compensation or SCOPIC remuneration, there is no maritime or statutory lien and, therefore, no way of enforcing its provision. Further, as mentioned earlier, before the days of SCOPIC, there was a marked reluctance to provide it. In a number of cases ship-owners, guided by their P&I club, refused to provide security, fought a claim for Special Compensation under Article 14 of the Salvage Convention to appeal and then negotiated on the final appeal award (typical smart move by ship owners to have the salvage services and reduce the reward to the salver!!). To avoid this happening, the SCOPIC Clause specifically provides that security in the sum of $3 million is to be provided within two days of the Clause being invoked (brought into play). It goes on to make provision for the amount to be adjusted, up or down, at the termination of the services, but substantial security is required up front. As further protection to the salver (that if security of USD 3 million) is not provided, the salvage contractor has the option to withdraw from SCOPIC. This would result in the reinstatement and limited protection afforded by Article 14 which, in most cases, would not be a lot of help to the salver (he protects the environment during the salvage operation, but does not get rewarded completely!). However, if security is not provided then at least the salver would know where he was and could pull out of the whole LOF contract on the grounds of the owners breach.

Once SCOPIC has been invoked, SCOPIC remuneration will be assessed in accordance with the cost for men-hours, tugs and equipment reasonably engaged or used in the operation, plus a bonus of 25%.

SCOPIC was intended as a security of a minimum payment, and therefore, by applying a standard tariff rate it became fairly simple to calculate SCOPIC remuneration on a daily basis. The assessed SCOPIC remuneration is due from the ship-owner, in so far as it exceeds the traditional salvage award made against salved property under Article 13 of the Salvage Convention. This is in line with Article 14 of the Salvage Convention, which provides that Special Compensation shall only be paid to the extent that its assessment exceeds the traditional Article 13 salvage award. The position is the same under SCOPIC. So for example, if the traditional salvage award is say $1 million and the assessed SCOPIC remuneration is $1.5 million, the salver will receive $1 million from the ship and cargo, pro rata to value, and $0.5 million from the ship-owner (P & I Club) in respect of SCOPIC remuneration. It is important to note, like Special Compensation under Article 14, that SCOPIC remuneration is to be paid by the ship-owner, not ship and cargo pro rata to value as is the case for the traditional Article 13 salvage award. This means different insurers are involved. Hull and Machinery insurers for traditional Article 13 salvage awards and liability insurers (P&I Clubs) for SCOPIC remuneration.

Q.8 (a) Discuss responsibilities of ship and shipper under the provisions of Hague Visby Rules.(b)State the various immunities enjoyed by the carrier under the provision of Hague and Hague Visby Rules.

Answer

(a)

The "carriage of goods" relates to ...the period from the time when the goads are loaded on to the time they are discharged from the ship" (Art. I). Therefore, the responsibilities commence when the goods are loaded and end when they are discharged, i.e., this probably includes the actual loading and discharging operation.

It also allows a carrier to agree to responsibility and liability related to the goods before loading on and after discharging from the vessel. The carrier shall be bound before and at the beginning of the voyage to exercise due diligence to:

Make the ship seaworthy; Properly man, equip and supply the ship; Make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation. Subject to the provisions of Article IV, the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.

(b)

For dangerous cargo, it reinforces the implied term at common law that the shipper will not ship dangerous goods without the consent of the carrier. The Rule provides that when such goods are shipped without the knowledge or consent of the carrier, not only is the carrier entitled to neutralize them at the expense of the shipper, and without any obligation to compensate the cargo-owner, but the shipper is also liable for any loss or damage resulting from their shipment.

Q.9With respect to marine insurance explain the following terms a)Doctrine of Proximate Clauseb)Floating Policy and its benefitsc)Notice of abandonment

Answer

(a) (Firstly, the question is wrong it is not Clause but Doctrine of Proximate Cause!)

Marine Insurance is a very important aspect of international trade, it is the practice that safe-guards the apportionment of marine transportation risk between the parties engaged in an international transaction that involves sea or marine voyage. Many times, it is impossible to come to consensus on the liability or non-liability of the insurers and the assured, this is often the case where the causation (the real cause of) of the marine peril is in issue.

Causation is a very important part in marine insurance law. The general principle is that the insurer will only be liable for any loss, which is proximately caused by a peril insured against. Therefore, the Doctrine of Proximate Cause may not be a principle of marine insurance but it is definitely elevated to a condition which must be fulfilled before the underwriter becomes liable to pay a claim. A claim becomes payable only if the insured risk was a direct or dominant or effective cause of the loss of the subject-matter. The cause need not be the nearest cause in time. If the damage or loss is not proximately caused by a peril insured against, i.e., if the cause of the loss or damage is remote from the actual risk or peril insured against, the claim against the insurer will fail. The section states:

...the insurer is liable for any loss proximately caused by peril insured against, but he is not liable for any loss which is not proximately caused by a peril insured against. This means that the insurer is liable to a claimant if the claimant can prove that the loss was directly caused by some event or situation that was insured against. It is up to the insurer, when a claim is made, to show that the actual or direct cause of the loss was an event or circumstance against the happening of which the assured (ship owner) was not protected by insurance.

(b)

Floating Policy

This policy describes the general terms and leaves the amount of each shipment and other particulars to be declared later on. The declaration is made in order of dispatch of shipment.The policy is taken for a round large sum which is specified at each declaration and is attached to each shipment. With each declaration the amount will be reduced till it is exhausted when the insured sum is said to be 'closed' and the policy is 'fully declared' or, 'run off. An example of Floating Policy is 'Open Cover'. It is an agreement between the assured and the insurer by which the assured on his part agrees to declare, and the insurer on his part agrees to accept all the shipments falling within the scope of the 'open cover' which is merely an original ship'. All such agreed declarations between the assured and the insurer are written on the back of the policy. A Floating Policy is suitable for a cargo-owner who makes regular shipments of cargoes. All his shipments are automatically covered as soon as the declarations are made. The floating policies are mostly used in the age of huge and regular trade volumes.

(c)

Notice of Abandonment

It is a formal notice of relinquishment (giving up) or unconditional surrender of all rights to a property, cargo, or ship by its insured owner (ship owner or cargo owner) to the insurer in the event of a constructive total loss. By this notice the assured declares its intention to treat the loss as actual total loss. The notice must be given with reasonable diligence otherwise (or in the absence of a notice) the loss may be considered partial and the assured will only get a partial insurance compensation. This notice of abandonment need not be in any particular form but must be clear and should indicate to the insurer that the assured unconditionally abandons the subject matter of insurance to the insurer and claims a total loss under the policy. The notice of abandonment should be given within a reasonable time after the assured has received reliable information of the loss.

July 2012

Q.1a)Explain the scope and objectives of United Convention on Law of the Seas (UNCLOS) 1982 to which, India is State Party.b)List down the rights of coastal state in territorial waters and Exclusive Economic Zone (EEZ).c)Enumerate the provisions of UNCLOS, 1982 relating to exclusive jurisdiction of the flag state under Article 94 at High Seas.

Answer

(a)

The law of the sea developed from the struggle between coastal states, who sought to expand their control over marine areas adjacent to their coastlines. By the end of the 18th century, it was understood that states had sovereignty over their territorial sea. The maximum breadth of the territorial sea was generally considered to be three miles - the distance that a shore-based cannon could reach and that a coastal state could therefore control.

The Third United Nations Conference on the Law of the Sea (UNCLOS III) the present one, addressed the issues bought up at the previous conferences. A major feature of the convention included the definition of maritime zones- the territorial sea, the contiguous zone, the exclusive economic zone, the continental shelf, the high sea, the international sea-bed area and archipelagic waters. The convention also made provision for the passage of ships, protection of the marine environment, freedom of scientific research, and exploitation of resources.

(b)

PLEASE REFER TO PREVIOUS ANSWER Q. 1 of January 2012.

(c)

Duties of the flag State

1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.

2. In particular every State shall:(a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and(b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship.

3. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, interalia, to:(a) the construction, equipment and seaworthiness of ships;(b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments;(c) the use of signals, the maintenance of communications and the prevention of collisions.4. Such measures shall include those necessary to ensure:

(a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship;(b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship;

5. AState which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation.

Q.2Describe the following:a)Purpose and contents of Vessel Response plan (VRP) as per Oil Pollution Act of USA 1990.b)Cargo record book entries to be made under MARPOL 73/78 annex II

Answer

(a)

The U.S. Oil Pollution Act of 1990 (OPA 90) establishes, unilaterally, oil spill response plan requirements for tank ships, called vessel response plans (VRPs), of extreme importance and concern to international tanker owners. In brief, OPA 90 VRP requirements include: Consistency with the National Contingency Plan (NCP) and area plans; Identification of a "qualified individual" to implement the plan and to coordinate with the federal on-scene coordinator (FOSC); Assurance, by contract or other approved means, of private re- sources to respond to a worst case spill (defined as loss of the entire cargo during adverse weather conditions); Training and drills; and Periodic updates. OPA 90 also requires carriage of removal equipment by tankers

(b)

Entries required for operations involving all categories of substances: Loading of cargo Internal transfer of cargo Unloading of cargo Mandatory prewash in accordance with the ships procedures and arrangements manual Cleaning of cargo tanks except mandatory prewash (other prewash operations, final wash, ventilation, etc.) Discharge into the sea of tank washings Ballasting of cargo tanks Discharge of ballast water from cargo tanks Accidental or other exceptional discharge Control by authorized surveyors Additional operational procedures and remarks

Q.3a) Describe salient features of Oil Pollution Preparedness, Response and Cooperation Convention (OPRC) 1990.b) State the various provisions of IMO Conventions under which Port State Control is exercised by the Coastal States.c) Briefly describe the statutory surveys and inspection pertaining to Oil Tanker as per SOLAS.

Answer

(a)

International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC) is an international maritime convention establishing measures for dealing with marine oil pollution incidents nationally and in co-operation with other countries and are required to establish measures for dealing with pollution incidents, either nationally or in co-operation with other countries THIS MEANS TO HAVE A CONTINGENCY PLAN FOR OIL POLLUTION AT THE REGIONAL LEVEL INVOVING A NUMBER OF COUNTRIES IN A REGION.

In accordance with this Convention and its Annex, States-Parties to the 1990 Convention undertake, individually or jointly, to take all appropriate measures to prepare for and respond to oil pollution incidents.

Objectives

The primary objectives of the OPRC are as follows (ALL AT THE REGIONAL LEVEL):

Contingency planning and coordinated response procedures. Establishment of equipment stocks sufficient to deal with oil pollution risks. Research and development programs. Training and exercise programs to facilitate oil spill response. SOPEP to be carried on board all vessels over a stipulated size.

Responsibilities of Ships and Oil pollution reporting procedures

1. Ships are required to carry a shipboard oil pollution emergency plan, in accordance with the provisions adopted by the IMO for this purpose. These plans are subject, while in a port or at an offshore terminal under the jurisdiction of a Party, to inspection by officers duly authorized by that Party. SOPEP IS THE ACCEPTABLE SHIPBOARD PLAN FOR OPRC. A contingency plan specifically for OPRC is therefore NOT REQUIRED.

2. Ships are required to report any observed event at sea involving a discharge of oil or the presence of oil or incidents of pollution to coastal authorities and the convention details the actions that are then to be taken.

(b)

A point to also be noted is the fact that the vested interest of the government of a PSC inspection is to ensure that its territory is not harmed by a visiting vessel in terms of safe operations and preventing pollution to its environment. Port State Control (PSC) is a ship inspection program whereby foreign vessels entering a sovereign states waters are boarded and inspected to ensure compliance with various major international maritime conventions, namely:

1. International Convention for the Safety of Life at Sea (SOLAS),2. International Convention for the Prevention of Pollution from Ships (MARPOL), International Convention on Standards of Training Certification and Watch keeping for Seafarer (STCW), 3. Load Lines (LL), 4. Convention on the International Regulations for Preventing Collisions at Sea (COLREG) 5. International Labour Organizations Maritime Labour Convention.

The level of survey conducted by a PSC inspector can go from a preliminary inspection to a more detailed inspection of the entire vessel. This will be dependent upon the impression that he gets while on board. What he will check is to ensure that there is a well-planned system of operation on board. If satisfied at the initial stage, then he will limit his inspection otherwise; he will start his detailed inspection.

(c)

The scope of statutory survey covers every part of SOLAS convention, LL convention, COLREG convention, MLC and MARPOL convention.

According to the classification rules - Classification survey is in accordance with the statutory survey simultaneously. As a result, classification survey is taken when doing statutory survey. Since the classification special survey cycle are restricted in less than 5 years for the reason of technical condition or structural condition, statutory survey renewal survey should in accordance with classification special survey, related statutory regular survey should adjust to it as well.

The anniversary date of statutory survey determine the date of annual survey, intermediate survey and renewal survey, as if the annual survey, intermediate survey and renewal survey are completed before specified time limit(namely before 3 months of the anniversary date), the anniversary date need to get revised to ensure all kinds of regular survey not exceeding the specified period.

To ensure the safety, IMO brought out CAS requirement for present oil tanker, namely all 5000DWT or international shipping oil tankers contracted, keel laid or delivered before 6th July 1996 should take CAS survey combined with intermediate survey, except for the oil tankers as follows:

Oil tankers which fulfilled the double hull requirements of MARPOL convention. Except for the side tank breadth and minimum height of double bottom space, which did not meet the requirement of MARPOL, under this situation, the protective height in double bottom central line should be B/15 or 2m, the protective distance of side tank should be 760mm. In accordance with the hydrostatic balance loading requirement of MARPOL, which is confirmed by MEPC (of IMO) - in terms of the detail requirement of CAS survey, the ship owner is advised to refer to the CCS Guidelines for Surveys of Condition Assessment Scheme (CAS) for Existing Oil Tankers

Q.4a)Define Special Trade Passenger and Special Trade Passenger Ship. b)State the purpose of Issuing Certificate A and Certificate B to the special trade passenger ship under the provisions of section 241/242 respectively of Merchant Shipping Act, 1958.c)State the provisions of MSA 1958 concerning entries to be made in Official Log Book (OLB).

Answer

(a)

Special Trade Passenger means a passenger carried in special trade passenger ship in spaces on the weather deck or upper deck or between decks which accommodate more than eight passengers and includes a pilgrim or a person accompanying a pilgrim. Special Trade Passenger Ship means a mechanically propelled ship carrying more than thirty special trade passengers.

(b)

Contents of Certificate A

The first of the certificates is referred to as Certificate A and shall be in the prescribed form and contain such particulars as may be prescribed.

In particular and without prejudice to the generality of the foregoing power, certificate A shall contain the following statements and particulars, namely:

that the ship is seaworthy; that the ship is properly equipped, fitted and ventilated; the number of special trade passengers the ship is certified to carry; and such other particulars as may be prescribed.

Certificate A shall remain in force for a period of one year from the date of issue or for such shorter period as may be specified in the Certificate A.

Contents of certificate B

The second of the certificates is referred to as Certificate B and shall be in the prescribed form and shall state:

the voyage which the ship is to make, and the intermediate ports (if any) at which she is to touch; that she has the proper complement of officers and seamen; that the master holds: a certificate of survey and certificate A; or a passenger ship safety certificate accompanied by an exemption certificate, a special trade passenger ship safety certificate and a special trade passenger ship space certificate; or that she has on board such number of medical officers licensed in the prescribed manner and such number of attendants, if any, as may be prescribed; that food, fuel and pure water over and above what is necessary for the crew, and the other things (if any) prescribed for [special trade passenger ships] or pilgrim ships, have been placed on board, of the quality prescribed, properly packed, and sufficient to supply the [special trade passengers] or pilgrims on board during the voyage which the ship is to make (including such detention in quarantine as may be probable) according to the prescribed scale; in the case of 4[a special trade passenger ship,] if the ship is to make a voyage in season of foul weather specified as such in the rules made under section 262, and to carry upper-deck passengers, that she is furnished with substantial bulwarks and a double awning or with other sufficient protection against the weather; in the case of [a special trade passenger ship,] the number of cabin and 3[special trade passengers] embarked at the port of embarkation; such other particulars, if any, as may be prescribed for [special trade passenger ship] or pilgrim ships, as the case may be. (c)

Entries required to be made in official log books

The master of a ship for which an official log is required shall enter or cause to be entered in the official log book the following matters, namely:

every conviction by a legal tribunal of a member of his crew and the punishment inflicted; every offence committed by a member of his crew for which it is intended to prosecute or to enforce a forfeiture or exact a fine, together with such statement concerning the reading over of that entry and concerning the reply (if any) made to the charge as is by this Act required; every offence for which punishment is inflicted on board and the punishment inflicted; a report on the quality of work of each member of his crew, or a statement that the master declines to give an opinion thereon with statement of his reasons for so declining; every case of illness, hurt or injury happening to a member of the crew with the nature thereof and the medical treatment adopted (if any); every case of death happening on board and the cause thereof, together with such particulars as may be prescribed; every birth happening on board, with the sex of the infant, the names of the parents and such other particulars as may be prescribed; every marriage taking place on board with the names and ages of the parties; the name of every seaman or apprentice who ceases to be a member of the crew otherwise than by death, with the place, time, manner and cause thereof; the wages due to any seaman or apprentice who dies during the voyage and the gross amount of all deductions to be made; the money or other property taken over of any seaman or apprentice who dies during the voyage; any other matter which is to be or may be prescribed for entry in the official log.

Q.5Write short notes on the following:a)Maritime Labour Convention 2006.b)Antifouling system for ships.

Answer

(a)

PLEASE REFER TO PREVIOUS ANSWER Q. 4 (c) of May 2012.

(b)

Anti-fouling system refers to a coating, paint, surface treatment or device used on a ship to control or prevent attachment of unwante