Lloyd's Maritime and Commercial Law Quarterly
PORT STATE CONTROL OR SUB-STANDARD SHIPS: WHO IS TO BLAME? WHAT IS THE CURE?
Sir Anthony Clarke *
Introduction
What is port state control? As I understand it, it is to be contrasted with flag state control. Historically, vessels were subject to the control of the flag state (and only the flag state) in almost every respect. In recent years, however, there have been many who have thought that it is not satisfactory to leave the regulation of safety of life at sea and the protection of the environment to the flag states, many of whom do not have the means and (in some cases) the inclination to take the appropriate steps. This has led to greater and greater control of vessels by the port state. The port state is the state in the territorial waters of which a vessel is at any particular time, provided that the vessel is destined to or has just left a port in that state. Port state control is the name given to the control and supervision of ships by that state. Its purpose is to ensure that sub-standard ships do not enter or leave its ports with consequent risk to safety of life, the preservation of property and the protection of the environment.
I shall first say a word about the role of the flag and the flag state. I shall then say something about the role which port state control has played and is playing now. Finally, I shall conclude with a word about the future. However, before doing so, I would like to express my thanks to Patrick Griggs, the Senior Partner of Ince & Co., who both suggested the topic and provided me with a great deal of information.
The flag state
The flag state is of course the state whose flag the vessel flies. Historically, the flag of a vessel was one of its most important attributes. There are a number of examples of this. Where a tort or a crime is committed wholly on board a vessel on the high seas the law of the flag is the decisive factor. Thus, the crime or tort is held to have been committed within the jurisdiction of the law of the flag. However, where a tort is committed on board a vessel which is in the territorial waters of a state, the locus delicti is said to be the littoral state rather than that of the ship’s flag. So, too, where a crime is committed on board a ship in such circumstances, the crime is committed within the jurisdiction of the littoral state, which in ordinary circumstances will exercise jurisdiction in respect of that crime. There may thus be
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