Striving for certainty and harmony and avoiding conflict

Lawmaking and its implementation have become increasingly significant to international shipping as recent legislation has given rise to conflict of laws, furthering legal "uncertainty" and detracting from harmonisation of law between national regimes.

The London Shipping Law Centre's Cadwallader Memorial Lecture at the IMO headquarters, London on October 1st will address questions arising from these concerns.

According to Dr Aleka Mandaraka Sheppard, the Centre's Founding Director, the following issues need to be tackled: 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.

Legal certainty requires an agreed set of coherent rules and a general road map for the law applicable to international shipping, Dr Sheppard maintains. However, legal certainty should not be regarded as an excuse to look at existing and proposed laws through narrow lenses, insisting on rigid application irrespective of effect. For legal rules to work, account must be taken of the context in which they are implemented.

"Uncertainty occurs when regional legislation punishes ship-source pollution on the basis of 'serious negligence'. This creates difficulties in implementation as well as interpretation of the law because it conflicts with international law," continues Dr. Sheppard.

"Such difficulties have been compounded by the European Court of Justice in relation to questions referred to it by the High Court in England. The ECJ decided it could not examine 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 Court nevertheless proceeded to interpret the term 'serious negligence' in Article Four of the Directive as a 'patent breach of the duty of care.' This is hardly consistent with legal certainty or harmonisation," argues Dr. Sheppard, "since it does not take proper account of the obligations of EU members under MARPOL. Harmonisation aims at a consistent body of law through establishing common standards across national borders. Lack of agreed and accepted common standards will invariably result in governments not implementing the law, thus rendering lawmaking a dead letter.

"Given the international nature of shipping, close co-operation between regional legislators and the IMO is imperative for the exchange of knowledge and harmonisation of maritime law. Considering the emergence of new independent states with diverse cultures and legal systems, there is even more need to establish internationally recognised standards for adoption by all maritime states."

Dr Sheppard concludes: "In short, we need to know which law to apply by establishing internationally recognised standards so that flag states, regulatory inspectors and national courts can enforce the law consistently and conflict is minimal."

She urges regulators and legislators to come together in co-operation with the IMO to use the vast knowledge and experience that exists within the industry and take steps which will ultimately lead to the harmonisation of international maritime law.

Under the chairmanship of the International Maritime Organization's Director-General Efthimios Mitropoulos, the issues will be 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.

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Notes 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.

The tenth Cadwallader Memorial Lecture will be held at IMO Headquarters, 4 Albert Embankment, London SE1 on Wednesday 1st October, starting at 5 pm. For details re attendance contact the London Shipping Law Centre: tel/fax 0207 679 1512. Website: www.london-shipping-law.com.