Conflict of laws must yield to legal certainty and harmony

An agreed set of cross-border rules for international shipping is absolutely essential. However, recent legislation has produced a conflict of laws to the detriment of legal certainty and the harmonisation of law between national regimes.

Accordingly, ship owners, legislators and lawyers have to tackle the following issues: who should make the law in a complex, global industry and how it should be implemented effectively; the relationship between regulations and rules at international level and those adopted regionally; which law should apply when there is conflict between international treaties and regional laws; which courts or tribunals would have competent jurisdiction to decide disputes; and how to reconcile differences between court decisions to enhance certainty in the law.

Dr Aleka Mandaraka Sheppard, Founding Director of the London Shipping Law Centre, highlighted these issues at the Centre's Cadwallader Memorial Lecture at the IMO headquarters, London on October 1st .

"No one would dispute that legal certainty is essential to the delivery of justice but it is equally important that the right balance must be struck. Insisting on a rigid application of law, irrespective of effect, is tantamount to looking at laws through narrow lenses. For legal rules to work, account must be taken of their context. For example, the EU Directive on ship-source pollution conflicts with international law."

The recent equivocal decision of the European Court of Justice on questions referred to it by the English High Court have compounded the problem. The ECJ decided it could not assess the validity of the Criminalisation Directive in relation to MARPOL because the European Community is not a party to MARPOL----notwithstanding that its members are. The ECJ, nevertheless, proceeded to interpret the term 'serious negligence' in Article 4 of the Directive as a 'patent breach of the duty of care.' This test is still lower than that provided by MARPOL.

"Such law is hardly consistent with legal certainty," continued Dr. Sheppard. "It does not assist the development of coherent rules, since EU members will, inevitably, be bound by two conflicting laws: the EU Directive and MARPOL. Which law should apply?"

Harmonisation aims to produce a consistent body of law through common standards across national borders. In shipping, provided there was no conflict between regional and international legislation, governments should implement international conventions and principles. Dr. Sheppard pointed out that the emergence of new independent maritime states with diverse cultures and legal systems meant there was an even greater need to adopt internationally recognised standards.

She concluded: "Only then could the law be enforced consistently for ship safety and environmental protection as well as fair compensation to victims of accidents. Only then would we know which law should apply. Close co-operation between regional legislators and the IMO is imperative for the exchange of knowledge in order to achieve uniformity of maritime law."

Under the chairmanship of the International Maritime Organization's Director-General Efthimios Mitropoulos, the issues were aired by Birgit Solling Olsen, Director for Shipping Policy, Danish Maritime Authority; Sir Michael Wood, Senior Fellow at the Lauterpracht Centre for International Law at Cambridge University; and Dr Thomas Mensah, former Presiding Judge, International Tribunal for the Law of the Sea.

Note to editors:

The London Shipping Law Centre teaches maritime law and conducts continuing professional education for the shipping industry, through short courses, seminars and workshops for legally and non - legally trained people. It has pioneered risk management education in shipping, spearheaded by its Founding Director, and provides a forum for exchanging ideas about legal and practical issues to challenge and advance the law and regulation to meet 21st century requirements.

This is manifest in the Centre's flagship initiative, the Cadwallader Memorial Lectures. These were set up in memory of Professor Francis Cadwallader, who taught maritime law at University College, London from 1963 to 1982 and later at Cardiff University until 1992. He made a major contribution to the elevation of maritime law in legal education. The nine previous Cadwallader lectures have covered sub-standard ships; civil justice reform; the European Commission's Erika packages; places of refuge for ships in distress; terrorism; regulation in the 21st century for quality shipping and environmental protection; criminalisation; extra-territorial jurisdiction in criminalisation cases; and a comparison of regulatory controls between shipping and aviation.