Maritime Reporter, November 1995

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WHAT THE FLAG STATE CAN DO TO HELP THE SHIPOWNER WHEN THE PORT STATE INTERVENES By Guy E. C. Maitkind, executive vice president, International Registries, Inc. Before describing how the flag state can assist when there has been a port state intervention, it is important to stress that port state control is not a "stand alone" sys- tem, but rather, is part of a larger system that encompasses the responsibility of the flag state as well. The Earl of Caithness, U.K. Minister of State Transport, best expressed this inter-relationship in stating that "Port state control is very limited. It is but the last line of defense. If one presses too much on port state control, it diverts attention from the more important issue of flag state control." International Acceptance The responsibilities of the flag state, or state of registry, have been defined through a myriad of international conventions and reg- ulations. Such conventions have set parameters for the roles of both port and flag states, and the sys- tem has been based on the roles as described in the following conven- tions: the International Conven- tion for the Prevention of Pollution from Ships (MARPOL 73/78); the International Convention for the Safety of Life at Sea (SOLAS); the International Convention on Standards of Training, Certifica- tion and Watchkeeping for Sea- farers (STCW) 1978; the Conven- tion on International Regulations for Preventing Collisions at Sea (COLREG) 1972; the International Convention on Load Lines (LL) 1966; and the 1982 United Nations Convention on the Law of the Sea (UNCLOS). These six instruments have in effect become the charter of port and flag state safety and environmental protection. Duties of the Flag State The flag state's role is perhaps most clearly described in the 1982 Convention on the Law of the Sea (UNCLOS). In particular, Articles 94 and 217 greatly contribute to a comprehensive understanding of how a flag state can and should work within the system to prevent port state interventions, and if an intervention does take place, how it should react. The "Duties of the Flag State" are set forth in Article 94, which delin- eates the jurisdiction and control the flag state may assert over the administrative, technical and social matters of vessels flying its flag. This Article establishes steps that may be taken by the flag state to ensure safety at sea, utilize qualified surveyors and proper navigational equipment, maintain appropriate manning and crew qualifications, and cooperate in marine casualty and incidents of navigation. The measures that may be taken by the flag state to enforce these standards are described in Article 217, which specifies that a proce- dure must be established to ensure that vessels failing to comply with the applicable international rules and regulations are prohibited from sailing. In addition, the flag state must provide for immediate investigations and proceedings in the event that a vessel is found to be in violation of these standards. UNCLOS was sent to the U.S. Senate for ratification in March 1995; and although the U.S. does recognize its contents as applicable law, the U.S. Senate has yet to rat- ify the convention. Duties of the Port State The SOLAS Convention contains provisions that have helped to define the roles of port and flag state. In particular, Regulation 19 sets forth the duties and responsi- bilities of the port state in cases of intervention. The Convention specifies procedures that should be followed with regards to verifica- tion of vessel certificates, detention of vessels, and reporting of inter- ventions. Regulation 19 focuses on the port state's power to intervene; however, it also provides the caveat that: "When exercising con- trol under this regulation, all pos- sible efforts shall be made to avoid a ship being unduly detained or delayed. If a ship is thereby undu- ly detained or delayed it shall be entitled to compensation for any loss or damage suffered." Article 6 of MARPOL 76/78 con- tains a balanced description of how the systems of port and flag state should work together. Article 6 entitled, "Detections violations and enforcement of the convention," includes reference to every "play- er" within the system: parties to the Convention (states); vessels to which the Convention applies; and flag states. 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