In the maritime law, there are some cases happened for the conflict in the ships. The justification is based on the ship’s flag. The ship’s flag is an important factor when the court makes the decision on the judging. The ship’s flag is a representation of the ship’s nationality, which means the ship is under control by the registered country. The ship should follow the regulation of the country and also can get the various protections or have the preferential treatments as tax, certification and security etc . In official, the ship’s flag is called ensign or pennant. The function of the ship’s flag is to show the other countries or ships that the ship’s nationality in the open sea to make them recognize where are the ships belonged . Based on the ship’s flag, the ship should obey the international and the registered country’s maritime law in the open sea. The ship’s flag is a sign of the ship’s nationality; therefore, the nationality of the ship is the other significance of the flag. The flag has a relationship with the nationality. The ship’s nationality plays an important role in the maritime law. And it can be used on the different kinds of marine conflict.
In this paper, it will make a brief description about the ship’s flag, then, extend the ship’s nationality, which is the invisible important element of the ships. In addition, it will explain the scope of the municipal law of the ships registry, which is a law that the conflicts are judged based on the ships’ registered countries.
The ship’s flag and nationality
In the shipping business, the choice of ship’s flag is decided by the ship owner’s consideration about the tax, inspection, maritime law. The different ships’ flag mean that the ships follow the different nationals’ provision. In addition, the ship’s flag also expresses the nationality which the ship has. Therefore, the ship’s flag plays an important role in shipping business. In most of the time, the ship’s flag will be considered as the ship’s nationality. The ship’s nationality is a certification of the ship owner register the ship based on a country’s regulation and gains the country’s tax or security protection when the ship sails on the open sea. The function of the ship’s nationality is for the justification when the ship has the conflict with the other ship, the court will make the judgment based on the ship’s national law.
In the other way, the ship’s nationality is the delegation of the ship’s flag, which is one of the maritime authorities’ foundations in international and national law. The usage of ship’s nationality presents the ship’s registered nation’s efficient maritime authority on the related ships and the various conflict situations. Most of the maritime judgment will consider the connecting factor as the most important element to estimate the conflict result.
There are different kinds of maritime conflict in the shipping cases. For instance, the ship’s ownership of property, the tortuous act on the open sea, the marine salvage and the limitation of marine liability of damage, they are all been arbitrated under the principle of ships’ nationalities.
In the ship’s ownership of property, for the moving action of the shipping business, it is hard to make sure the ship’s location. It is assumed that the ship is on the open sea and there is a property problem happened; it is difficult to judge the conflict by any countries’ authorities. Therefore, it would be efficiently if the judgment is based on the ship’s national maritime law.
In the case of the Anton Durbeck GmbH v Den Norske Bank ASA , the claimant T claimed for the tort of the damage of the bananas which were transported from Ecuador to Panama. To some financial problem, the ship was been arrested and the cargos were damaged. The ship was registered in the Cyprus and both parties can accept the English law and Panama law both. One of the problems of this case are which law should be used and how to decide the arrest judgment. According to Private International Law (Miscellaneous Provisions), Act 1995 s.11(1), choose which country’s law based on the location when the case happened . The location of the case happened is the connecting factor to make the court arbitrate the judgment.
To the tortuous act on the open sea, it is a special in tortuous act. For the complexity of this act, the maritime laws in different nations are variously. Some nations will use the ship’s nationality as the arbitrate principle. When the conflict happened on the territorial sea, it will be judged by the territorial maritime law mostly. However, if both of the ships are in the same nationality, the case will be arbitrated by the law of the ship’s nation, not the territorial maritime law.
Assumer that the tortuous act is happened on the open sea and, the consequence is limited inside the ship, as the argument in the seafarers, not the damage of the facility or equipment on the other ships or public infrastructure, the act will be judged according to the maritime law of ship’s nationality, which is used wildly in international.
In the third situation, if the salvage is under the contract, the salvage will be acted by the contract condition. Otherwise, the salvage will be performed by the maritime law based on the ship’s nationality. As the ship’s registered nation, the country has the liability to do the salvage action to help the ship in dangerous. It is reasonable to use perform the municipal maritime law of the ships registry, especially on the open sea and, the damage ships are in the same nationality. The application of the municipal maritime law of the ships registry has been acquiescent by the nations.
For reducing the maritime law conflict, the international maritime nations drew up several international conventions about the limitation of marine liability of damage. As, the Convention on Limitation of Liability of Owners of Sea-going Ships in Brussels, 1957, and, the Convention on Limitation of Liability for Maritime Claim in London of 1976 . Although there are several convention about the limitation of marine liability of damage, the provision in the conventions are quite different, which are not uniformed and lack of continuity. In the three marine opinions, the municipal law of the ships registry has three performances. Firstly, the municipal law of the ships registry will enhance the ship owners’ predictable and stability of their responsibility. Secondly, the municipal law will simple the relationship between the ship owner and the loaner. Lastly, this act can improve the nations respect the other countries’ limitation of marine liability of damage, which will protect the ship owners’ legal right. In the Merchant Shipping Act 1894 of UK, it said that, the limitation about the crew and the ship’s responsibility, except the extra maritime regulation, they are all based on the municipal law of the ships registry. It has been used wildly in other countries.
The shipping business has different conflict on the territorial and open sea area. The judgment of the conflict has various situations. The foundation of the arbitration will be according to the contract or the other element of the maritime law. The ship’s flag is an obvious and significant sign of the ship’s nationality, which performs the national maritime law when the conflict happened. Therefore, the choice of the ship’s flag is very important to the shipping business and also the judgment when something happened. As the connecting factor between a ship and a State, the ship’s nationality takes a main effect when the ship has conflict. In addition, the scope of using the municipal law of the ships registry is wildly. The ship’s ownership of property, the tortuous act on the open sea, the marine salvage and the limitation of marine liability of damage all can get a fair trial under this maritime law. Therefore, the choice of the ship’s flag is very important, it will effect the arbitration when the ship’s get into international conflict.