The 10th Cadwallader Memorial Lecture – 1st October 2008
“Lawmaking and Implementation in International Shipping: which law do we obey?”
Keynote address by the Founder and Executive Director, Dr Aleka Madaraka-Sheppard
Introduction by the Chairman – Mr Efthimios Mitropoulos, Secretary General – IMO
Speech by Mrs Birgit Solling-Olsen, Danish Maritime Authority
Speech by Dr Thomas Mensah
Speech by Sir Michael Wood KCMG
Vote of Thanks – Lord Mustill, President of the LSLC
When the law conflicts with the law, lawyers, courts and tribunals, have the formidable task of producing harmony from conflict. How to avoid or resolve conflict between regional and international legislation and promote harmonisation were the themes of this year’s Cadwallader Memorial Lecture of the London Shipping Law Centre, held fittingly at the IMO headquarters in London on October 1st.
Conflict in laws is most likely to arise at an international level when nation states, regional groupings of states and other multistate organisations produce a range of acts and instruments which dovetail in some respects but not in others.
The problem presented, thereby, is especially marked in the shipping industry. Merchant vessels are often built, flagged, owned and operated by and from different countries. In the course of their working lives, they sail into the territorial waters and economics zones covered by a range of national, regional and international jurisdictions.
It is 60 years since the International Maritime Organisation began – first in consultative and later in a lawmaking role – the long haul of gaining agreement from disparate jurisdictions of its members states on rules, standards, procedures and conduct that would be accepted by the great majority of nations and international bodies – dealing with regulation pertaining to safe, secure and efficient shipping in clean oceans. This fundamental and indispensible role of the IMO was also celebrated at the 10th Cadwallader event.
Inevitably there will be some conflict of laws. Some are difficult to resolve, not least in the maritime world. The founder and director of the Centre, Dr Aleka Mandraka Sheppard, Visiting Professor of Maritime Law at UCL, posed a series of key questions arising from conflict to the 500 delegates from the shipping industry and the legal and other marine professions.
Who should make the law in a complex, global industry and how should it be implemented effectively? Which law should apply when there is conflict between international treaties and regional laws? Which courts or tribunals would have competent jurisdiction to decide disputes? How should differences between court decisions be reconciled to enhance certainty in the law? Should there be a Supreme Court to decide definitively on disputes of conflict of laws when courts or tribunals get it wrong?
Dr Sheppard stressed the need for an agreed set of coherent rules applicable to cross-border international shipping and for harmonization of maritime law. “No-one would dispute that legal certainty is essential to the delivery of justice… but for legal rules to work, account has to be taken of the context in which they are implemented. For example, the EU directive on ship-source pollution conflicts with the context of international law.” The difficulties created by this Directive, she continued, are compounded by the decision of the European Court of Justice which avoided answering the vital question whether or not the Directive is valid in relation to MARPOL, leaving national courts to interpret the Directive according to principles applicable by national rather than international law.
“Such law is hardly consistent with legal certainty, and it does not assist the development of coherent rules, since the EU members will, inevitably, be bound by two conflicting laws”, said Dr Sheppard. She urged close co-operation between regional legislators and the IMO for the exchange of knowledge in order to achieve uniformity of maritime law. “Only then can the law be enforced consistently for ship safety and environmental protection as well as fair compensation to victims of accidents. Only then will we know which law should apply”