Read through the scenario carefully, and when you are ready, try and answer the three questions. Write down your answers on a sheet of paper.

It is a hypothetical situation and the scenario needs to be studied carefully before attempting the three questions. Do not expect to be able to reproduce exactly the supplied model answers, but try to ensure that you have understood the jurisdictional aspects raised by the situation.

The Scenario:

A ro-ro passenger ferry flying the flag of FLAG “A” is engaged on a regular international run between two ports “P” and “Z”. On 1 April 2004, the passenger ferry was outbound from country “Z” bound for country “P”. On board were 1000 passengers – 500 from country “Z”, 230 from country “P”, 210 from country “Y”. The master of the ferry had a pilot exemption. Six miles off the coast of country “Y” and approaching the pilot station shared by ports in countries “P” and “Y” the ferry was in collision with a tanker of country “B” outbound from port “Y”.

Country “Y” has a VTS operation and coordinates the immediate response to the collision.

The tanker is badly damaged and leaks crude oil and catches fire, the fire spreading to the tanker’s accommodation, engine room and steering flat. The tanker, out of control, grounds on a sandbank in the territorial sea of country “P”.

Eighteen of the tanker crew comes from country “X”, while the remainder including the master and deck officers, come from country “W”. The mate and ten of the crew, as well as the pilot of the tanker, died, including a cadet from country “X”.

Six passengers on the ferry received serious burns and were transferred by helicopter to country “Y”. The ferry was forced to put into the port of country “Y”.

Questions

What are the jurisdictional claims of each State involved?

Which State or States should investigate?

What limitations may be experienced?

Model answers

Question 1 - What are the jurisdictional claims of each State involved?

Answer:

State “A” presumably both registered the ro-ro ferry and licensed/certificated the officers and crew. As the State of the flag of one of the vessels involved in a serious casualty, “A” not only has ‘sovereign’ jurisdiction under customary international law to investigate the casualty, but has at least one specific obligation to do so under conventional international law. Because of the serious personal injury of passengers on board the ferry, and assuming that “A” is a State party to ILO Convention 147, Article 2(g) of that Convention not only imposes the obligation to investigate the casualty but also obliges “A” to publish the results of that investigation. SOLAS ’74, Annex, Chapter 1, Regulation 21 obliges “A” to investigate only if its Administration reaches an independent subjective judgment that an investigation may assist in determining what changes in the SOLAS Regulations might be desirable. The obligation of a flag State under UNCLOS Article 94(7) – not only to investigate, but also to co-operate in the investigation with other States directly affected by the casualty – is imposed only if the casualty occurs on the high seas; because under Article 3 of UNCLOS it is the option of a coastal State to declare a territorial sea up to 12 nautical miles in breadth, the national law of State “Y” will determine the applicability of Article 94(7) to State “A”.

[As a separate matter, “A” is obliged by STCW ’95, Annex, Chapter I, Regulation I/5 to establish procedures under its national law for the investigation of any reported incompetency, act or omission that may pose a direct threat to safety of life or property at sea or to the marine environment by the holders of certificates or endorsements issued by its Administration. To the extent that it appears that the casualty may have been caused or contributed to by incompetency, errors or omissions on the part of any of the officers and crew of the ferry, or by actions or omissions of the owner or operator of the ferry, “A” also has an obligation under this hybrid of international and national law to investigate and to impose disciplinary measures if warranted. Depending upon “A’s” national legal requirements of due process, this investigative proceeding may have to be conducted separately from the casualty investigation.]

State “B” as the State of the flag of one of the vessels involved in a serious casualty not only has ‘sovereign’ jurisdiction under customary international law to investigate the casualty, but also has at least one specific obligation to do so under conventional international law. Because of the death of the mate and ten of the crew on board the tanker, as well as the pilot, and assuming that “B” is a State party to ILO Convention 147, Article 2(g) of that Convention not only imposes the obligation to investigate the casualty but also obliges “B” to publish the results of that investigation. Again SOLAS ’74, Annex, Chapter 1, Regulation 21 obliges “B” to investigate only if its Administration reaches an independent subjective judgment that an investigation may assist in determining what changes in the SOLAS Regulations might be desirable. The obligation of a flag State under UNCLOS Article 94(7) – not only to investigate, but also to co-operate in the investigation with other States directly affected by the casualty – is imposed only if the casualty occurs on the high seas; because under Article 3 of UNCLOS it is the option of a coastal State to declare a territorial sea up to 12 nautical miles in breadth, the national law of State “Y” will determine the applicability of Article 94(7) to State “B”. [MARPOL ‘73/’78 Article 12 would not impose an obligation upon State “B” to investigate, as it is not established that this casualty produced a “major deleterious effect” upon the marine environment. UNCLOS Article 217 (4) and (6) will also impose no obligation on “B” because the release of oil to the environment resulted from the collision, and not from a violation of the rules and standards referred to in Part XII of UNCLOS.]

[As a separate matter, “B” is obliged by STCW ’95, Annex, Chapter I, Regulation I/5 to establish procedures under its national law for the investigation of any reported incompetency, act or omission that may pose a direct threat to safety of life or property at sea or to the marine environment by the holders of certificates or endorsements issued by its Administration. Though all of the officers and crew of the tanker were foreign nationals, it is assumed that they were licensed and certificated by “B” as required by STCW. Therefore, to the extent that it appears that the casualty may have been caused or contributed to by incompetency, errors or omissions on the part of any of the officers and crew of the tanker, or by actions or omissions of the owner or operator of the ferry, “B” also has an obligation under this hybrid of international and national law to investigate and to impose disciplinary measures if warranted. Depending upon “B’s” national legal requirements of due process, this investigative proceeding may have to be conducted separately from the casualty investigation.]

State “Y” is certainly a “substantially interested State” as defined by the Casualty Investigation Code; even if under its national law the casualty occurred outside its territorial sea, its operation of the VTS and its co-ordination of the immediate response ensures that it has at its disposal important information that may be of use to the investigation. Whether the casualty occurred inside or outside “Y’s” territorial sea, the release of oil may reasonably have threatened serious harm to “Y’s” marine environment. If the pilot was a national of “Y” that would also establish “Y’s” substantial interest under the Code because of the pilot’s death; likewise if any of the injured ferry passengers were nationals of “Y”. That 210 nationals of “Y” as ferry passengers were exposed to danger by the collision may be considered a “significant interest”.