Shipping is a highly regulated business by governments. In shipping history, most governments regulations had arisen in the 19th and 20th centuries and especially after World War II. Establishment of International Maritime Organization (IMO) in 1948 by United Nations, provided an active forum and body for consideration of safety, environmental and other regulation of ships. After the establishment of International Maritime Organization (IMO), there are now numerous international conventions governing shipping business. International conventions co-exist and form the base of maritime nation’s regulations. Flag State, the country which registers the ship, primarily regulate the ship. Besides, ships are also regulated by countries that ships call at their ports, known as Port States. International law places the primary responsibility for ship regulation on the flag state. Nevertheless, flag state’s jurisdiction is not exclusive. Port states have a legitimate and recognized interest under international law in regulating certain aspects of ships which enter their territorial jurisdiction. Most maritime nations take ship pollution seriously. Maritime nations are active in putting in effect of laws to protect the environment. Maritime nations enforce laws and regulations by port states for ships entering into their waters. In United States, there are some limitations on United States Port State Regulations. United States Supreme Court has long struggled with the interrelationship between flag-state primacy and United States port-state jurisdiction. United States labor laws does not always apply to the crews of foreign ships while they are in United States ports. Supreme Court enunciated a clear statement rule whereby United States laws would apply to the internal affairs of foreign ships only if there was a clear statement by Congress in the law that it was intended to apply in that way to foreign ships. United States government can regulate the foreign ship cruise industry serving United States market. Generally, United States does no more than inspect cruise ships against international standards rather than United States specific laws or standards. Furthermore, Americans with Disabilities Act of 1990 (ADA) is applicable to foreign cruise ships operating in United States waters. For example, in recent Supreme Court case: Spector v. Norwegian Cruise Line Ltd. in 2005. Supreme Court considered, among other things, the relationship between the Americans with Disabilities Act of 1990 (ADA)‘s requirements and international legal safety obligations otherwise applicable to cruise ships to ascertain whether there was a conflict between the two regulations. According to Supreme Court, the burden falls on the person claiming interference with a ship’s internal affairs before the clear statement rule will be invoked so as not to apply the United States law to the foreign ship. Ship safety, environmental and other regulations stem from international conventions. These regulations implemented and enforced through domestic law adopted by flag and port states. International conventions have the great advantage of bringing some uniformity to the regulation of shipping industry.
International Maritime Organization (IMO) which is a United Nations’ body that is headquartered in London, United Kingdom. International Maritime Organization (IMO) was formed at an international convention held in 1948. International Maritime Organization (IMO) has 170 full members and 3 associate members. United States Coast Guard represents the United States at the International Maritime Organization (IMO). International Maritime Organization (IMO) acts through general sessions and through committees. International Maritime Organization (IMO) Conventions that are adopted in general session are then open for ratification by the member countries. At International Maritime Organization (IMO) meetings, signed conventions do not become effective until a certain percentage of members ratify the convention to ensure that only conventions with broad consensus are implemented.
Safety of Life at Sea Convention (SOLAS) is a principal international maritime convention. Safety of Life at Sea Convention (SOLAS) was originally developed to set design, equipment, and manning standards for ships. Safety of Life at Sea Convention (SOLAS) consists principally of technical regulations concerning ship construction, fire protection, life-saving equipment, drydocking, surveys, and similar matters. Recently, International Maritime Organization (IMO) has adopted additional conventions, as separate chapters, addressed to marine safety. Additional SOLAS Conventions are customarily identified specifically by reference to their individual names.
International Safety Management (ISM) Code was adopted to address gaps in safety management oversight and responsibility by ship owners. Under the ISM Code, a ship operating company must implement a company safety management program, and every ship must implement a Safety Management System (SMS). Safety Management System (SMS) includes maintenance and operational checklists, regular safety meetings, formal follow up on safety issues, and regular auditing. One notable legal effect of the International Safety Management (ISM) Code has been to require much greater supervision of ship operations by ship owners. Hence, International Safety Management (ISM) Code broaden the privity and knowledge of the ship owner for purposes of limitation of liability.
The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW). The STCW Code sets basic standards for manning requirements and seafarer certification. The STCW Code imposes limits on the hours that may be worked by watch-standing mariners and requires certain levels of rest. The STCW Code also imposes international standards on the qualifications required by seafarers. Besides, all seafarers must receive basic orientation and training before being allowed to assume a watch on board of ships.
International Convention for the Prevention of Pollution from Ships (MARPOL). MARPOL was created by the International Maritime Organization (IMO) in the wake of MT SS Torrey Canyon disaster in 1967. MT SS Torrey Canyon was a LR2 Suezmax class oil tanker with a cargo capacity of 120,000 tons of crude oil which ran aground in the English Channel and spilled her entire cargo into the sea, the largest oil spill up to that time. International Convention for the Prevention of Pollution from Ships (MARPOL) was adopted by virtually all maritime nations and applies to all commercial ships that trade internationally. MARPOL convention imposes certain construction standards, record-keeping requirements and regulations concerning the discharge of pollutants into the ocean. MARPOL’s regulations govern the prevention of pollution by oil, noxious liquid substances, packaged harmful substances, sewage, garbage and air pollution.
International Ship and Port Facility Security (ISPS) Code. The ISPS Code was created by the International Maritime Organization (IMO) promptly after the 9/11 terrorist attacks in the United States. The ISPS Code applies to both ships and port facilities, and requires them to develop security plans and implement security measures to protect ships, terminals, and other waterfront facilities from terrorist attacks.
International Convention on Maritime Liens and Mortgagee. Usually, this convention is known as 1993 Geneva Convention. It sets a number of international standards on the recognition and enforcement of maritime liens and the enforcement of ship mortgages around the world.
In the United States, international maritime conventions like other international conventions, generally only become law in the United States and become applicable to ships visiting the United States or to U.S. registered ships if they are enacted as a domestic law by Congress and signed by the President. United States Coast Guard issues regulations and other guidance on the implementation of the law. All countries are free to enact requirements applicable within its jurisdiction either in advance of the adoption of an International Maritime Organization (IMO) convention or even inconsistent with such conventions. In the United States, individual states often enact environmental or other requirements that apply to ships visiting state waters that may or may not be consistent with then generally accepted international requirements. In practice, most maritime nations require foreign ships to comply with generally effective International Maritime Organization (IMO) conventions as a condition to entering national waters. Compliance with International Maritime Organization (IMO) conventions is initially evidenced by certificates issued by the flag state or a classification society under authority of the flag state. Port states always have the right to inspect ships to confirm acceptance with conventions as well as for compliance with domestic law and other requirements. Port states may also detain a ship in port and forbid the ship to depart unless non-compliance issues are resolved to its satisfaction.
In the United States, these agencies may inspect ships:
- The United States Coast Guard
- The Environmental Protection Agency
- The United States Customs and Border Protection Customs and Border Protection (CBP)
- The Immigration and Naturalization Service
- The United States Department of Agriculture
The United States Coast Guard is the primary agency responsible for inspecting:
- U.S.-flag ships
- Foreign-flag ships
in United States waters under the United States Port State control regime.
The Environmental Protection Agency is responsible for:
- regulates discharges from ships into the navigable waters of the United States
- regulates emissions from engines on ships on the United States waters
The United States Customs and Border Protection Customs and Border Protection (CBP) is responsible for:
- enforcement of the Customs Laws
- regulates the arrival and departure of ships
- loading and unloading of ships.
- administers the Jones Act coast-wise trade regulations
- regulates duties on S.-flag ship repairs
The Immigration and Naturalization Service is responsible for:
- clearing crew members into and out of the United States
- enforce immigration laws
- issuing visas (landing permits) to non-residents arriving on ships.
- inspect ships for stowaways
- require ships to post security officers to prevent persons from entering the United States illegally.
The United States Department of Agriculture is responsible for:
- inspections of the cargo holds of ships used to carry grain cargoes
- inspections of provisions brought by ships into the United States waters
- prevent the introduction of dangerous pests