Reasons for the Limited Effects of the International Convention on the Arrest of Ships

Reasons for the Limited Effects of the International Convention on the Arrest of Ships Table of Contents

1. Introduction
2. History of Ship Arrests and Various Maritime Conventions
3. Key Features of International Convention on the Arrest of Ships
4. Reasons for limited effect of the Maritime convention

• Contradiction with RTA’s
• Lack of clear definition
• Constantly changing Amendments

5. Recommendations for Effective Implementations

Introduction News about international ships getting arrested for crossing borders come up nearly every day. Though maritime technology is at its peak, acts of law violation creating severe diplomatic tension are in constant increase. The essay explores some important legal issues associated with the maritime regulatory development. It starts with the procedure of arrest of ships in historical times and analyzes the ratification status of the main maritime conventions of our time. It examines in detail the International convention on Arrest of ships adopted at Geneva and compares the practical difficulties encountered by the ships in following the rules and regulations of the convention. History of Ship Arrests and Various Maritime Conventions Each country has different laws and regulation when it comes to ship arrest. The USA and the Peoples Republic of China are considered as the main players in the industry as nearly 42% of the all imports in world are done by the USA. Over 100 million containers filled with goods are exported from China alone to the US annually. The ship arrests laws of each country is closely linked with its history. Ships originally traded valuable goods like silk, spices and gold in ancient times. Chinese ships still dominated the ocean those days as fleets of ships carrying silk and other valuable set sail worldwide to sell their goods. Ships were confiscate those days by looters. It is said South Indian kings and the African inhabitants provided patrol forces to protect the ships crossing their sea line in exchange of gold, perhaps the first duty tax collection. These people set the basic maritime rules, stressing on proper ratification of every ship passing by. Ship arrests in the medieval age changed face with constant military conquests. Ships with ammunitions were often arrested fearing military attack. Trading ships carrying weapons for protection were often mistaken for military ships and attacked brutally. Hence, changes were made in the appearance of military and trading ships and flags were hoisted to notify what the ship carried. The current day national policy of the government with the neighboring countries affects the admiral jurisdiction taken by the maritime courts. In England an international ship can be arrested if there is a way to initiate the "in rem" action against it. The English strictly implements several laws drawn during the 1952 International Arrest convention. The Administration of Justice Act 1956 pointed out several changes in the convention with the view of serving practical purposes. But, England implements the old practices still based upon familiarity and ease of use. The US laws are mostly based on the UK maritime conventions. Scottish laws are also based on the UK laws predominantly. Arrest of ships is an issue of major importance to the trading community in the contemporary world as nearly 48% of the total goods involved in world trade are transported through sea. From machineries to perishable items and things ordered online, millions of items are loaded on huge containers everyday and imported or exported through sea. Crossing borders is a constant procedure for both the ships carrying day to day goods and the ones carrying ammunition. But, sadly there is no regularized global policy allowing secure transport of ships across the sea as each country has its own rules and regulations regarding marine transport. The 1952 Arrest Convention was the first global initiative to set common standard for all countries on how to treat the trading ships entering their territory. Here is a list of the some of the main laws which were drafted over time to regulate the arrest of ships since 1952. Among these various conventions, the 1999 International Convention on the Arrest of Ships drafted in Geneva is the most influential and recent one. The 1999 Arrest Convention is the most modern international regime that governs the procedure of arrest of ships in this decade. Compared to the 1952 Arrest convention, it presents a “wider definition of arrest and wider scope of application” (UNCTAD, 2011). The list of claims in the 1952 Arrest convention has been extended to suit the modern needs. However this area of the law is still considered to be developing in the conventions and new amendments are made regularly to the claims. The convention addresses the discrimination between the Regional Trade Facilitation or RTA effectively through various progressive moves. Key Features of the International Convention on Arrest of Ships The convention drafted on March 12, 1999 in Geneva has 17 articles starting with definitions for key terms like “Arrest”, “Claimant” and “hypotheque”. It clearly explains what a "Maritime Claim" means in the first 22 points addressing every issue from the dispute between the owners of the ship to due charges to be paid in ports and docks. The various sub sections in the convention define who has the power to arrest the ship and the how right should be exercised legally. The convention gives ample importance to RTA’s. Since, the key focus for both the regional governments as well as the international ship operators is to earn profit the convention aims in minimizing the discrepancies arising out of following local laws pertained to each country. “Adopting a coherent approach to the negotiation and implementation of the new or existing regional and multilateral trade facilitation commitments by countries is critical in this respect” says a review of the convention (UNCTAD, 2011). Reasons for limited effect of the Maritime convention Contradiction with RTA’s There are several contradictions between the jurisdictional rules and arrest conventions in nearly every country. The main objective of the convention is to reduce the complexity of the formalities involved in the international trade. If the multiple RTA rules interfere with, all crucial rules, there is no point in following an international protocol. Productive measures to minimize the RTA rules contradicting with the international convention should be taken. Discrimination for the ships of certain country trading ships should be avoided. The contract rules should apply equally to all the trading partners. “Apply preferential trade facilitation measures to all trading partners” says the convention. The policymaking of the RTA should be modified in such a way it does not affect the trade relations with the particular countries. Since, each country in the world has several disputes with its immediate neighbors rather than major opponents this measure is not practically applicable when it comes to framing national policies. Lack of clear definition Arrest means ceasing a ship in a particular territory. But, the ship is free to more around as long as it does not enter a particular place. In case of mortgage or other ownership issues, RTA laws are used to protect the ships. Though there are many definitions regarding all maritime claim terms, many of them are interpreted in multiple ways by the lawyers to make the case move favorable for their clients. Clear definitions regarding key terms should be drawn to ensure they are not misused by the authorities in different countries. Constantly changing Amendments Article 12 and 13 of the convention clearly mentions if any procedure in the convention is in violation with the states laws, the state can notify it to the committee and get it changed before acceptance. States with more than one system of law can mention how far the rules are applicable in a particular area. Nearly 474 RTA’s were presented to the WTO requesting state ratification on issues like goods and services security and duty amount regulations. The points in nearly 351 RTA’s considered reasonable and added in the convention (UNCTAD, 2011). Such constant amendments and failure to notify them properly to all the related concerns only cause chaos. Free trade rules often does not recognize RTA’s role in interfering with the international property rights and government procurement. But, lack of communication and confusion in following the ever changing protocols make many officials stick to RTA’s rather than the rules of the international convention. Recommendation for Effective Implementation Gaining international co-operation on the key laws and ensuring proper communication across the world regarding the standard set of procedures is a must. Amendments in the convention should be made only annually which will make it easy for the officials to follow the changes and keep themselves updated. Clear and well defined terminology which prevents all forms of misuse on the judicial side should be framed. Effective steps to route ships from problematic neighbors in an alternate path should also be taken. Proper measures to ensure the laws are followed strictly will bring the issue to an end. The countries which sign the convention should be made to agree to the key strategies and agendas in the convention rather than bringing up their own RTA rules constantly. Conclusion The International Convention on the arrest of ships has little or no effect in solving maritime claims owing to their sophisticated procedures and easily foreseeable laws. Framed with the good intention of easing and securing the marine transport, the convention had played a significant role in regularizing various maritime claims. It will continue to do so if certain steps are taken to implement the strategies stated in the convention by all the nations in the world. References

1. 'International Convention on the Arrest of Ships' (1999) <https://www.admiraltylawguide.com/conven/arrest1999.html>accessed 8th March 2014
2. Review of Maritime Transport 2011, Report by the UNCTAD secretariat (United Nations, 2011) 129

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