By
DR. MUHAMMAD TAHIR
Lt Commander (Retd) Pakistan Navy
Advocate Sindh Bar Council
Education Officer Pakistan Coast Guards
Asst. Professor Dadabhoy University, Karachi
muhammadtahir649@yahoo.com
The earth covers
71% with water and oceans are the largest body of water covering 96.5% of its
total on this universe1 and above 90% of the world trade is
dependent on shipping and increasing rapidly with increase of population of the
universe.2 Another fact is that 50% of world’s population lives within
the 60 km of the coast lines.3 Above all shipping is mandatory to
sustain the stated system for its survival.
The boat/ship is
among only few things which have created Allah by himself or on his special
instructions presence. The first ever boat was built by Hazrat Noah (A.S) about
3578 B.C. Allah ordered Noah (A.S) to build an
Ark (Safina) which would save him and the believers from this dreadful
calamity. In Quran Allah says:
“And construct the
ship under Our observation and Our inspiration and do not address Me concerning
those who have wronged; indeed, they are [to be] drowned. (11:37)”4
In other verses of Surah-e-Rehman & Al-Baqara He said about the
ships that:
And to Him belong
the ships [with sails] elevated in the sea like mountains (55:24) 5
In fact shipping
is between the Nations at international level as ships transport oils and other
heavy materials, goods, cargo and overseas trade in foreign bottoms which
cannot be transported by any other means. Thus laws governing shipping are internationally
recognized and adopted by all the nations except few who don’t have seas.
International Maritime Organization (IMO) under charter of UNO is an
international body who makes and implements the shipping laws time to time,
applicable to whole of the member Nations. Pakistan has so far ratified a total
of 27 international instruments of IMO, sources said.
Although
shipping is a complex word and has multi dimensional meanings however, herein
shipping means, a Merchant Vessel or Trading Vessel is a boat or ship that
transports cargo or carries passengers for hire. This excludes pleasure
craft that do not carry passengers for hire; warships are also excluded.
Most countries of the world operate fleets of merchant ships and Pakistan is one
of the Sea Trading countries among the progressive world. Following National
Shipping Laws are applicable & being implemented in Pakistani waters:
Karachi Port Trust Act, 1886
(a) Power to define and alter limits of Port. Government may by notification in the Official Gazette:
(1) Define the
limits of the port for purpose of this Act, and
(2) From time to
time alter such limits.
Fisheries Act, 1897
Act to be read as supplemental to other Fisheries Laws. Subject to the provisions of sections 4 and
26 of the General Clauses Act, 1897 (X of 1897),
this Act shall be read as supplemental to any other enactment for
the time being in force relating to fisheries in any part of
Pakistan
Ports Act, 1908
a. This Act shall
extend, save as otherwise appears from its subject or context:
(1) To the ports
mentioned in the first schedule
(2) To the other
ports or parts of navigable rivers or channels to which the Government, in
exercise of the power hereinafter conferred, extends this Act.
Law of Carriage of Goods by Sea Act, 1925
A carrier (the
ship-owner) is liable only for the loss arising or resulting from his
negligence or fault in the duties and obligations provided in the Act,
otherwise the ship-owner will not be liable. He is not liable even for the loss
arising out by the mistake of the pilot or the crew in the navigation or in the
management of the ship. The carrier shall not be
liable in any event for any damage or loss to the goods in an amount exceeding
£ 100 per package or unit, unless the nature and value of such goods have been
declared by the shipper before shipment.
Port Qasim Authority Act, 1973
The following Act
of the National Assembly received the assent of the President on the 22nd
June, 1973, and is hereby published of general information. It extends to the
whole of the Port area and shall come into force at once.
Pakistan Environmental Protection Act,
1997
The Federal Ministry of Environment was constituted in 1975. The Ministry has held responsible for promulgation of the “Pakistan Environmental Protection Ordinance 1983”. This was foremost complete legislation made on the subject in country. The major aim of Ordinance 1983 was to set up institutions as “Pakistan Environmental Protection Council (PEPC)” and Federal & Provincial Environmental Protection Agencies. Pakistan organized “National Conservation Strategy (NCS)” in the same year which gives the country a broad structure for addressing environmental concerns. “National Environmental Quality Standards (NEQS)” were also designed during 1993.
The Pakistan Environmental Protection Ordinance 1983” was repealed on the enactment of “Pakistan Environmental Protection Act (PEPA)” on 06 Dec 1997. The “Pakistan Environmental Protection Act 1997” provides the structure for implementation of conservation of renewable resources, Tribunals and appointment of Environmental Magistrates NCS, Protection and conservation of species, establishment of Provincial Sustainable development Funds, establishment of “Environmental Impact Assessment (EIA)” and “Initial Environmental Examination (IEE).
Pakistan Maritime Security
Agency Act, 1997
According to this act, “Maritime Interests of Pakistan" means rights, control, jurisdiction and sovereignty over Maritime Zones and includes the sovereign rights of Pakistan to explore, exploit, conserve, manage the living and non-living resources and other activities for economic exploitation, exploration and to safeguard the unauthorized exploitation of resources of Pakistan seas and prevention thereto from damage through pollution.
Pakistan Merchant Shipping
Ordinance, 2001
In Pakistan, Admiralty and maritime law mainly involves the Carriage of Goods by Sea Act, 19256 (Hague Rules) and Merchant Shipping Ordinance, 2001. Admiralty jurisdiction is conferred upon the Sindh and Baluchistan High Court by virtue of the “Admiralty Jurisdiction of High Court Ordinance, 1980”. The 1980’s ordinance is similar to the English law and it is therefore uncomplicated to arrest a ship in Pakistan. The salient features of Pakistan Merchant Shipping Ordinance, 2001 are as under:
(a) Save as otherwise expressly provided, this Ordinance shall
apply to:
(1) All Pakistani ships wherever they may be;
(2) All ships deemed to be registered under this Ordinance wherever
they may be;
(3) All other ships while in a port or place in, or within the
territorial waters or within the exclusive economic zone specified in Section 6
of the Territorial Waters and Maritime Zones Act, 1976 (LXXXII of 1976):
Provided that the provisions of this Ordinance shall not apply to:
(a) Any ship,
commissioned for service, in the Pakistan Navy or, while employed otherwise
than for commercial use in the service of Government, any other ship belonging
to Government; or
(b) Any ship
belonging to any foreign State while employed otherwise than for commercial use
in the service of such State.
Shipping
ordinance, 2001 bounds the ships entering in Pakistani waters to abide international
laws in conjunction with this ordinance and not to pollute the sea in any way.
Section 554 & 555 Chapter 43 Part XIV It stipulates that “no oil or oily mixture or harmful substance can be discharged into the sea from any Pakistani or foreign ship”.7 According to subsection (3), “if oil or oily mixture or harmful substance is discharged the master or the owner of the ship shall be liable to imprisonment which shall not be less than two years and fine which shall not be less than $50,000 but may extend to 1 million US dollars. In the case of continuing contravention, an additional fine may be imposed which may extend to $50,000 for every day after the first during which such contravention or failure continues”.8
Section 556 Chapter 43 Part XIV. It stipulates that “no noxious liquid substances shall be discharged into the sea from a Pakistani ship or foreign ship”.9
Subsection (2) “if noxious liquid substances or their residues are discharged the master or the owner of the ship shall be liable to imprisonment which shall not be less than two years and fine which shall not be less than $50,000 but may extend to 1 million US dollars”.10
Section 562 Chapter 43 Part XIV It stipulates that “a surveyor or any person appointed by the Federal Government may, at any reasonable time, go on board a ship for the purpose of ensuring that the prohibitions, restrictions and obligations imposed by or under the convention are complied with”.11
Section 568 Chapter 43 Part XIV It stipulates that “the dumping of wastes or other matter prescribed as such is prohibited and any person acting in contravention of this section shall be liable to imprisonment which shall not be less than two years and fine which may extend to one million US dollars. The implementing agency would be the Ministry of Ports & Shipping Government of Pakistan”.12
Ministry of Port
& Shipping, Govt. of Pakistan is responsible to ensure the
fulfillment/implementation of Maritime Laws and MARPOL 73/78 in its
jurisdiction.
The Gwadar Port Authority
Ordinance, 2002
This act extends to the whole of the Port area. The Authority may with the prior sanction of the Federal Government, make regulations for carrying out the purposes of this Ordinance.
The Sindh Environmental Protection
Act, 2014
After
implementation of the 18th amendment13 in constitution of Pakistan, 1973 from April 2010,
Sindh Environmental Protection Act, 2014 and relevant EIA/IEE rules and
environmental quality standard are in force for the improvement of environment.
Before the 18th amendment PEPA has recommended followings:
(a) Marine Pollution Control Board may be revised with legal
authority to direct any organization to take necessary measures with regard to
pollution control.
(b) Standards of sea water quality be declared.
(c) Harbour Management Plan be prepared and implemented considering
the relevant areas & precise tasks and target be assigned to relevant
authorities.
Following International Shipping Laws are also applicable & being implemented in Pakistani waters and violation of these laws carries specified monitory fines and other such penalties:
The Bills of Lading Act, 1856
By the
custom of merchants a bill of lading of goods being transferable by
endorsement, the property in the goods may thereby pass to the endorsee, but
never the less all rights in respect of the contract contained in the bill of
lading continue in the original shipper or owner, and it is expedient that such
rights should pass with the property; And whereas it frequently happens that
the goods in respect of which bills of lading purport to be signed have not
been laden on board, and it is proper that such bills of lading in the hands of
a bona fide holder for value should not be questioned by the master or other
person signing the same, on the ground of the goods not having been laden as
aforesaid.
Hague Rules, 1924
The Hague Rules is a set of international rules for the international carriage of goods by sea. The carrier's main duties are to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried and to exercise due diligence to make the ship seaworthy and to properly man, equip and supply the ship.
The
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter (London Convention), 1972
In
1996, the "London Protocol" was agreed to further modernize the
Convention and eventually replace it. The Protocol prohibits all dumping except
for possibly acceptable wastes on the so-called "reverse list". The
Protocol entered into force on 24 March 2006 and there are currently 48
Parties to the Protocol. Its objective is to promote the
effective control of all sources of marine pollution and to take all
practicable steps to prevent pollution of the sea by dumping of wastes and
other matter. Currently, 87
States are Parties to this Convention.
International
Convention for the Safety of Life at Sea (SOLAS), 1974
The
SOLAS Convention in its successive forms is generally regarded as the most
important of all international treaties concerning the safety of merchant
ships. The first version was adopted in 1914, in response to the Titanic
disaster, the second in 1929, the third in 1948, and the fourth in 1960. The
1974 version includes the tacit acceptance procedure and has been updated and
amended on numerous occasions. The Convention in force today is sometimes
referred to as SOLAS, 1974.
The
International Convention for the Prevention of Pollution from Ships MARPOL
73/78.
Annex
I Tankers
above 150 tonnes and other ships above 400 gross tones are subject to survey
and certification. Discharge of oil or oily mixtures from the machinery spaces
is prohibited.14
Annex
II It
applies to ships carrying dangerous liquid chemicals in bulk.
Annex
V Applies
to all sizes of ships including yachts, fishing vessels, tankers and offshore
platforms for prevention of Pollution by Garbage.
Article
217 States
to ensure compliance by vessels flying their flag or of their registry with
applicable international rules and standards adopted in accordance with this
Convention for the prevention, reduction and control of pollution.15
Article
218 Describes
the inquiry related to any discharge from vessel.16
Admiralty Law, 1980
Admiralty law is
distinguished from the Law of the Sea,
which is a body of public international law dealing
with navigational rights, mineral
rights, jurisdiction over coastal waters and international law
governing relationships between nations. Although each legal jurisdiction
usually has its own enacted legislation governing maritime matters, admiralty
law is characterized by a significant amount of international law developed in
recent decades, including numerous multilateral treaties.
UNCLOS, 82
Article 194 and 195 of Part XII of the United Nations
Convention on Law of the Sea deals with Protection & Preservation, reduce
or control pollution of the Marine Environment”.17 Articles 207 to 212 of the convention deals with the land
based pollution”. Pakistan has ratified
on 26 February 1997.
Basel Convention, 1992
The Basel
Convention on the Control of Trans boundary movements of hazardous wastes and
their disposal. Basel Convention is an international treaty designed
to reduce the movements of hazardous
waste between nations. Convention
entered into force on 5 May 1992.
Civil Liability Convention (CLC), 1992
Legal responsibility of oil tanker owners deals by the CLC.
A Convention at International level for establishing an “International Fund”
for reimbursement of Oil Pollution Damage is called FUND for which charity is
concluded by oil importers. Exceptional situation means and includes “War or
acts of God”.18
Pakistan submitted the instrument of accession for the
ratification of CLC-92 to International Maritime Organization (IMO) on February
12, 2005. With the accession to CLC-92 Pakistan has so far ratified a total of
27 international instruments of IMO, sources said.
Hazardous and Noxious Substances (HNS) Convention, 1996
The Hazardous and Noxious Substances (HNS)
Convention has been available for ratification since 1996. It is generally the
case that ratification of international conventions is slow, but up to now,
only four countries have ratified it.
International Convention on Oil
Pollution Preparedness, Response and Cooperation (OPRC), 1990
Preservation
of Marine Environment particularly and protection of the human environment in
general are the basic principles of OPRC.19 Involvement of offshore
units sea ports, ships and oil management facilities are considered the serious
hazard posed by all oil pollution occasions to the marine environment. This is
attentive of the importance of prevention and protective measures in avoiding
oil pollution in the first case and requires strict accessible international
instruments dealing with marine pollution prevention & maritime safety.
The International Code for the Security of Ships and Port
Facilities
After
the tragic events of 11th September 2001, the 22nd session of the
Assembly of the International Maritime Organization in November 2001,
unanimously agreed to the development of new measures relating to the security
of ships and of port facilities for adoption by a Conference of Contracting
Governments held in December 2002, to the International Convention for the
Safety of Life at Sea, 1974.
a.
No monitoring of violators in Pakistani
waters
b.
Non awareness of laws to local
fishermen/seafarers
c.
Non implementation of shipping laws
d.
Delay and lengthy court proceedings
The Federal Government in exercise of the powers conferred
by the constitution of Pakistan should constitute the following shipping
regulations in light of international laws:-
a.
Prevention of
Pollution by Oil
b.
Control of
Pollution by Noxious Liquid Substances in Bulk
c.
Prevention of
Pollution by Harmful Substances Carried in Packaged Form
d.
Prevention of
Pollution by Sewage from Ships
e.
Prevention of
Pollution by Garbage from Ships
f.
Provision of
Reception Facilities
g.
Reporting of
Pollution Incidents
h.
Awareness campaign regarding Maritime
Laws through print/electronic media
i.
Strict compilation of Laws to be
ensured through relevant Govt. agencies
1. Retrieved from <https://water.usgs.gov/edu/earthhowmuch.html>
2. Retrieved from < https://business.un.org/en/entities/13>
3. UNEP (2016)
4. Al Quran (Surah Hood (11:37)
5. Al Quran (Surah Rehman (55:24)
6. Hague Rules, 1924
7. Section 555 Chapter 43 Part XIV of Pakistan Merchant Shipping Ordinance
8. Subsection (3) of Section 555 Chapter 43 Part XIV of Pakistan Merchant Shipping Ordinance
9. Section 556 Chapter 43 Part XIV of Pakistan Merchant Shipping Ordinance
10. Subsection (2) Section 556 Chapter 43 Part XIV of Pakistan Merchant Shipping Ordinance
11. Section 562 Chapter 43 Part XIV of Pakistan Merchant Shipping Ordinance
12. Section 568 Chapter 43 Part XIV of Pakistan Merchant Shipping Ordinance
13. Constitution of Pakistan, 1973
14. MARPOL 73/78
15. Section 6 of Part XII MARPOL 73/78
16. Section 4 of Article 217, MARPOL 73/78
17. Part XII of the UNCLOS-82
18. Convention on Civil Liability for Oil Pollution Damage (CLC)
19. Intentional Convention on Oil Pollution Preparedness, Response and Cooperation 1990 (OPRC)