What do you do when you're bound by conflicting laws?

What do you do when faced with two apparently conflicting laws? Which law should apply?

These questions are becoming increasingly important for the shipping industry as legislation enacted and supported by nation states, groups of states and multistate organisations inevitably produces uncertainty, a lack of harmonisation and conflict of laws. The issues arising were addressed at the tenth Cadwallader Memorial Lecture, organised by the London Shipping Law Centre at the International Maritime Organization headquarters in London on October 1st.

The Centre's Founding Director, Dr Aleka Mandaraka Sheppard, posed a series of key questions to 500 delegates from the shipping industry and the legal and other marine professions.

Who should make the law in a complex, global industry and how should it be implemented effectively? What should be 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? How should differences between court decisions be reconciled to enhance certainty in the law. Dr Sheppard stressed the need for an agreed set of coherent rules applicable to cross-border international shipping. "No one would dispute that legal certainty is essential to the delivery of justice." For legal rules to work, account had to be taken of the context in which they are implemented.

The European Court of Justice, on questions referred to it by the English High Court, recently decided it could not assess the validity of the Directive in relation to MARPOL, because the European Community is not a party to the Convention----although its members are. Nevertheless, the ECJ 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 the test provided by MARPOL.

"Such law is hardly consistent with legal certainty and retards the development of coherent rules, since the EU members will, inevitably, be bound by two conflicting laws."

Harmonisation aims at a consistent body of law through common standards across national borders. Close co-operation between regional legislators and the IMO is imperative for the exchange of knowledge in order to achieve uniformity of maritime law. If conflict between regional and international legislation is to be avoided, governments should be made to implement international conventions and principles.

"Only then can the law be enforced consistently for ship safety and environmental protection as well as fair compensation to victims of accidents. Only then will we know which law should apply."

The dilemmas were aired and the issues tackled by Sir Michael Wood, Senior Fellow at the Lauterpracht Centre for International Law, Cambridge University; Dr Thomas A Mensah, former Presiding Judge, International Tribunal for the Law of the Sea; and Mrs. Birgit Solling Olsen, Deputy Director-General, Danish Maritime Authority.

Sir Michael Wood said there had been a proliferation of international courts and tribunals since the 1990s which had enhanced the opportunies for shipping interests to bring direct actions on the international plane. Under the United Nations Convention on the Law of the Sea, whose 157 parties included the EU, ship owners could make use of the International Tribunal for the Law of the Sea in Hamburg. For public international law of the sea, there was no such court, although decisions of the ICJ and of ITLOS were likely to be accorded great weight.

"There seems to be a tendency in Brussels to react, in haste and without much reflection, to the latest shipping disaster----to seize upon the latest incident to push through proposals that have been on the stocks for some time. There is a tendency to blame an 'out-of date' Law of the Sea Convention for failure to act ahead of time." However, the EU had to reconcile the differing views of 27 Member States as to what the international law of the sea requires. "On the whole, the EU has not done as badly as its reputation among law of the sea community would lead one to suppose."

Sir Michael referred to the inadequacy and unevenness of enforcement, especially by some flag States which had given rise to some exorbitant port and coastal State jurisdiction; and to the slowness of traditional procedures for the adoption and entry into force of international conventions. Although IMO has pioneered tacit approval for amending conventions, it could be much quicker to adopt Community legislation.

He believed that the balances struck in the package deals of the 1970s under the 1982 Law of the Sea Convention, had stood the test of time. They are flexible and open-ended, looking forward to the future development of international rules and standards. The rules in the Convention could be adjusted through new agreements and uniform practices. Moves to amend the Convention's regime for shipping would be unlikely to succeed or to lead to a better regime. "Unilateral attempts to change international law in this field are equally if not more hazardous."

The rights of states over shipping in the various maritime zones are always subject to limits and constraints imposed by international legal instruments or principles, maintained Dr. Thomas Mensah. A state seeking to implement its national laws against a foreign ship should have "due regard to its obligations vis a vis the ship or its owner or the personnel on board." These might arise under international law rules and regulations. Where the laws of a state or a group of states conflict with those in an international instrument, the former might be unable to apply their law to the ship, or may have to modify its application to avoid violating the rights of other states.

There were bound to be cases in which the laws established by one law-maker conflict or are not entirely compatible with regulations or principles claimed by another to be equally applicable to the same ships or operations.

Dr. Mensah said three issues had to be considered: whether the contending rules and principles are necessarily applicable to ship, person or incident; whether there is a conflict or incompatibility between the rules or principles involved; and, if so, which of the conflicting rules should be accorded priority in the circumstances. Would it be possible to adapt to permit the application of both rules or standards without necessarily creating a conflict?

Mrs Birgit Olsen felt the IMO's role as a focal point of international rule setting was being challenged by regional organizations such as the European Community. The EC's draft communication on strategic options for European Shipping and the European maritime transport system 2008-2018 indicated that EU maritime safety and security policies should be pursued through instruments agreed through IMO. Appropriate regulatory measure should be timely and properly enforced. The document warned that failure to do so would inevitably give rise to regional rules by the different parts in the world to the disadvantage of the international system.

Harmonised and globally applied international standards were regularly challenged by states taking unilateral action, e.g. on pollution or liability, continued Mrs. Olsen. "If IMO does not continue to act promptly on current issues such as reducing emissions from ships, it will become extremely difficult to ensure the necessary support for global rules and regional or national rules will prevail."

For an organisation with more than 160 constituents, it was obviously a difficult task to ensure consensus on legislation. However, quicker entry into force would be beneficial.

The debate was chaired by IMO Secretary-General Efthimios Mitropoulos. He reminded his audience that today shipping today is a safe and secure mode of transport----comparatively clean, environmentally friendly and very energy efficient. This reflected international co-operation over many years with IMO making an invaluable contribution.

"Decisions within the IMO are taken by consensus. If 51 per cent of nations vote for a measure and 49 per cent against it, it will not work. We have to have consensus. The shipping industry has no alternative to creating law at an international level. The framework is in place but it needs action at national level.

"I am sure you all share my grave concern about piracy----the number of incidents and their ferocity," added Mr. Mitropoulos. "IMO has been very active. The UN Security Council did what we asked. UNCLOS allows for the seizing of pirates, reflecting the principles of public international law."

This memorial lecture was set up in tribute to Professor Francis Cadwallader for his contribution to education and the development of maritime law.

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