Page 40: of Maritime Reporter Magazine (November 1995)

(Continued from page 39) accepted standards and one system of enforcement, many conflicting interpretations of these standards by both port and flag state have developed.

In cases where interpretation varies, port state inspectors fre- quently find the opinions of the flag state and classification soci- eties to be helpful and even per- suasive.

The participation of the class societies is essential to the success- ful operation of the system of port state control, as the documents issued by the societies either certi- fy compliance with, or note depar- ture from applicable regulations.

Consequently, class societies should always be invited to partic- ipate in situations where port authorities are about to detain a vessel or have already done so.

The problems caused by regional safety and environmental require- ments can frequently be resolved by the participation of the flag states. For example, the U.S. Code of Federal Regulations (CFR) requires that certain equipment, ouatech

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When a chemical carrier, gas carri- er or tanker is in an U.S. port, there may be a question as to whether the U.S. standard differs from that of the flag state, and if so, what standards should apply. A responsive flag state should supply port inspectors with guidelines of its interpretation of the interna- tional requirements, such as those found in MARPOL and SOLAS. If reasonably constructed, such guidelines may persuade the port state from imposing its own. In addition, the guidelines describing the flag state's interpretation may lead to a favorable outcome for the owner, especially when the vessel is manifestly safe and seaworthy, but has been questioned regarding a minor infraction such as chart corrections.

Looking Ahead: The Role of

Flag States

The flag state's role should be proactive rather than reactive; with its focus directed towards decreasing the number of vessels that are detained.

The International Safety

Management (ISM) Code, which will become mandatory for some vessels in 1998, will require vessel operators to establish a written plan with policy objectives in sup- port of safety management and pollution prevention. As the ISM

Code is implemented, the role of flag state in both pre- and post- intervention situations will change, and the code will further solidify ties between the vessel operator, port authorities, and the flag state administration.

Despite the tendency of many to focus on the inequities and prob- lems with the system, the fact remains that the system of port/flag state implementation does work. The system may be flawed; however, flag and port states do work together effectively overall.

The future is certain to bring new laws that will strengthen the base upon which the system has been founded, and further reinforce the relationship between vessel own- ers, port and flag states.

About the Author

G.E.C. Maitland, Esq., is exec- utive vice president and general counsel for International Regis- tries, Inc. He is a member of the

Legal Committee for the

Internationa] Maritime Organ- ization (U.N.), London, a U.S.

Representative for the Com- mission of Sea Transport, Inter- national Chamber of Commerce,

Paris, and a U.S. Representative for the Commission on Sea Trans- port, International Chamber of

Commerce, Paris.

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