¹ Michael, R. M’Gonigle, and Zacher, Mark W., Pollution, Politics and International Law 143 (California, 1979).Google Scholar

² In the winter of 1976/77 there was a veritable spate of incidents off the North American coast. For a summary of these incidents, see “Demolition Derby at Sea,” Time, January 24, 1977, at 35. Canada had her own tanker incident when the British registered tanker, Kurdistan, broke up in heavy seas on March 15, 1979 off Cape Breton Island, causing extensive pollution damage to the coasts of Nova Scotia and Newfoundland.

³ In one of the best-known tanker incidents of all times, the Torrey Canyon incident, the accident was attributed to an error in navigation, the ship having taken a channel that masters were specifically advised not to enter. See United Kingdom, Secretary of State for Home Department, Coastline Pollution: Observations on the Report of the Select Committee on Science and Technology, Cmnd 3880, 1969, para. 13. Closer to home, there was the case of the Liberian tanker, the Arrow, which grounded off the coast of Nova Scotia in Canadian territorial waters due to improper navigation by the master in failing to maintain his plotted course and omitting to check his course for over an hour while proceeding at full speed in fog. See Canada Royal Commission, Pollution of Canadian Waters by Oil and Formal Investigation into Grounding of the Steam Tanker, “Arrow,” Judgment, 41.

⁴ In the case of the Arrow, for example, despite its examination some nine days prior to the accidents, the ship was found to have faulty radar equipment and the compass did not work properly. See ibid., 21–22. In the case of the Amoco Cadiz, the cause of the accident was, according to the inquiry conducted by Liberian authorities, inadequacies of design of the steering gear. See Liberia, Bureau of Maritime Affairs, Interim Report of the Formal Investigation, February 23, 1979, Monrovia, 52–57.

⁵ In the Torrey Canyon incident, for example, the master was under strict instructions to reach his port of destination, Milford Haven, Wales, by high water on the day the accident occurred so as not to miss entry into port. A late arrival would have meant a costly delay of five days outside port awaiting the next high water. Thus, while the master perceived his error in entering the wrong channel in time to correct it, he took the risk of proceeding to avoid delay. See Cowen, E., Oil and Water: The Torrey Canyon Disaster 39 (Philadelphia, 1968).Google Scholar

⁶ For a vivid description of the dilemma facing masters of supertankers, see Mostert, N., Superskip 153–54 (New York, 1974)Google Scholar. In the wake of the Amoco Cadiz incident, the whole relationship between masters and shipowners has been under study at the Inter-Governmental Maritime Consultative Organization (IMCO). See “Ad Hoc Working Group on the Relationship between Shipmaster, Shipowner and Maritime Administration,” Report to Council, 1st Sess., IMCO Doc. REL I/4 (1978). For interesting observations and analysis respecting tanker accidents, see Abecassis, D.W., The Law and Practice Relating to Oil Pollution from Ships 45–50 (London, 1978).Google Scholar

⁷ For an instructive review of the reasons for the growth of tankers, see Anderson, A.W., “National and International Efforts to Prevent Traumatic Vessel Source Oil Pollution” (1976) 30 U. of Miami L. Rev. 985 at 998–1000 Google Scholar. For figures illustrating the massive increase of oil transported by sea (250 million tons in 1954 to 1,700 million tons in 1977) see Work Programme of IMCO in the Field of Marine Environment Protection, April 4, 1979, IMCO Doc. MEPC XI/INF.4, at 3. Contrary to popular belief, however, it has been suggested that VLCCs are not more prone to accidents than other ships. See D. W. Abecassis, supra note 6, at 49.

⁸ For the distinction between “flags of convenience,” “flags of necessity,” and “quasi flags of convenience,” see the remarks of Gold, E., “New Directions in Maritime Law,” 1978, Dalhousie Continuing Legal Education Series, No. 18, at 100–2.Google Scholar

⁹ A number of studies have appeared in recent years that provide interesting reading on the subject of flags of convenience, in particular, their involvement in accidents and the causes therefor. See Drewry, H.P. (Shipping Consultants), Ltd., London, World Shipping under Flags of Convenience: An Economic Study, No. 37, July 1975 Google Scholar; Doganis, R.S. and Metaxas, B.N., The Impact of Flags of Convenience, Transport Studies Group, Research Report B, Polytechnic of Central London.Google Scholar For a critique of this latter study, see Abrahamson, B.J. (1979) 11 J. of Mar. L. & Com. 147 Google Scholar. See also, In Search of Safety, Sea Trade Publications, Colchester, U.K., 1976, and Grundy, K., Flags of Convenience in 1978, Transport Studies Group, Discussion Paper 8, Polytechnic of Central London, 1978.Google Scholar

¹⁰ It has been observed that the majority of casualties take place near coasts, mainly because close to land the highest traffic densities occur and the water depth is the shallowest. See D. W. Abecassis, supra note 6, at 48.

¹¹ The authority generally cited for this proposition is the Muscat Dhows case, Hague Reports, Scott Edition, 1916, at 93–109. A more recent authority is to be found in Lauritzen v. Larsen 345 U.S. 573 at 584 (1953).

¹² 450 U.N.T.S. 11. The genuine link concept had featured in the preparatory work of the International Law Commission (ILC), which formulated the draft articles for the 1958 Geneva Conference. See Report, ILC, 8th Sess., 1956, at 24.

¹³ For a summary of the discussion at the 1958 Geneva Conference, see Boczek, B.A., Flags of Convenience 248–62 (Cambridge, Mass., 1962)CrossRefGoogle Scholar. That the inclusion of the requirement of genuine link in Article 5 has no real substance received some confirmation in the advisory opinion of the International Court of Justice on Article 29(a) (as it then was) of the International Convention for the Establishment of the Inter-Governmental Consultative Organization, the so-called “IMCO Case.” See [1960] I.C.J. Rep., 150. The issue in that case was whether the first IMCO Assembly had been correct in excluding Liberia and Panama from the Maritime Safety Committee, in particular, whether “largest shipowning nations,” one of the criteria for election, meant anything more than registered tonnage. The Court concluded that it meant nothing more than registered tonnage and that the issue of genuine link was immaterial (at 171). See, however, the opinion of dissenting Judge Moreno Quintana (at 168) who thought that the issue was material.

¹⁴ United Nations Third Conference on the Law of the Sea, Informal Composite Negotiating Text, U.N. Doc. A/CONF.62/WP.io/Rev. 2(1980) (hereinafter referred to as the ICNT), Art. 87. A third revision has now appeared, entitled Draft Convention on the Law of the Sea (Informal Text), U.N. Doc. A/CONF.62/WP.10/Rev. 3.

¹⁵ Art. 94(3). These provisions furnish examples of the manner in which the ICNT has taken provisions from existing conventions, with appropriate additions. Thus, for example, Art. 94(3) is simply an expanded version of Art. 10 of the High Seas Convention with a significant addition, namely, the reference to the training of crews.

¹⁶ See, for example, Lowe, A.V., “The Enforcement of Marine Pollution Regulations,” (1975) 12 San Diego L. Rev. 624–35.Google Scholar

¹⁷ Herman, Lawrence L., “Flags of Convenience: New Dimensions to an Old Problem” (1978) 24 McGill L.J. 1 at 18.Google Scholar But see also, Fitch, D.A., “Unilateral Action versus Universal Evolution of Safety and Environmental Protection Standards in Maritime Shipping of Hazardous Cargoes,” (1979) 20 Harvard Int’l L.J. 127 at 139Google Scholar, where he suggests that though the new obligations are more detailed than those of the 1958 Conventions, imprecise language will detract from their effectiveness. Osuka, E., “Flags of Convenience Vessels: Recent Developments” (1979) 73 Am. J. Int’l L. 604, at 609Google Scholar, suggests the provisions could be strengthened, for example, by specifying what a state may do after it has reported, pursuant to Art. 94(6), and the other state to whom the report is made fails to take action to remedy the situation.

¹⁸ 516 U.N.T.S. 205.

¹⁹ For further discussion of the changes in the concept of innocent passage in the ICNT, see D. A. Fitch, supra note 17, at 136–38.

²⁰ It has been suggested that IMCO’s ineffectiveness in the field of environmental protection stems, inter alia, from the fact that the IMCO Convention contains “no strong mandate” in this area. See Greenberg, E.V.C. “IMCO: An Environmentalist’s Perspective,” (1976) 8 Case W. Res. J. Int’l L. 131 at 135.Google Scholar It is interesting to note that it was not until 1975 that the IMCO Assembly adopted a resolution to amend the IMCO Convention to give legal recognition to the Marine Environment Protection Committee as an organ of the Organization with the same status as the Maritime Safety Committee. See Assembly Resolution, IMCO Doc. Аз58(ГХ), 1975. For an analysis of the term “competent international organization” see Kingham, J.D. and McRae, D.M., “Competent International Organizations and the Law of the Sea,” (1979) 3 Marine Policy 106.CrossRefGoogle Scholar

²¹ One of the significant developments at UNCLOS III is the formal recognition in the ICNT of the right of coastal states to establish an exclusive economic zone 200 nautical miles in breadth from the base line from which the territorial sea is measured. See Part V, in particular, Art. 57.

²² Art. 211(6). See also, Kronfol, Z., “The Exclusive Economic Zone: A Critique of Contemporary Law of the Sea” (1977) 9 J. of Mar. & Com. 461 and 472 Google Scholar, who suggests that this provision is based on the Arctic Waters Pollution Prevention Act.

²³ Ibid. The Commission of Inquiry established by the French National Assembly to investigate the Amoco Cadiz incident has suggested that the English Channel be recognized as a special area by IMCO within the meaning of this provision. See “Le Rapport de la Commission d’Enquête créé à la suite du nau-frage d’un navire pétrolier sur les côtes de Bretagne,” Assemblée Nationale, No. 665, Journal officiel, le 14 novembre 1978, Tome I at 79-80 and Tome II, Recommendation 5 at 12.

²⁴ R.S.C., 1970, Chap. 2 (1st Suppl.).

²⁵ Ibid., in particular, subsections 3(1) and 12(1). See also, the Arctic Shipping Pollution Prevention Regulations, Canada Gazette, Part II, Vol. 106, No. 20, SOR 72-426 at 1847. For an account of the main provisions of the Act, as well as its purpose and background, see Pharand, D., The Law of the Sea of the Arctic, 224–44 (Ottawa, 1973).Google Scholar It is open to question whether the Arctic Shipping Pollution Prevention Regulations really go beyond international standards or whether they merely provide standards where there are no international standards; for example, in s. 6 of the Regulations there is a requirement that ships carrying oil in excess of a certain quantity be ice-strengthened. There is no equivalent international standard.

²⁶ Where such co-operative arrangements exist, the competent international organization must be informed of the participating states.

²⁷ The provision was discussed during the 7th Session as paragraph 2 bis to Art. 212 of the ICNT as it then was. See Results of Negotiations on Part XII during Seventh Session, Third Committee (Informal Meeting) MP/24, 1 (May 15, 1978). This provision should be read with the right of states “to take the necessary steps to prevent breach of conditions of admission to internal waters“ contained in the articles relating to innocent passage. See Art. 25(2).

²⁸ This is inferred from the fact that no restriction has been included in the language. See, for comparison, Art. 21(2).

²⁹ The importance of the provision authorizing states to set conditions for entry into their ports has already been commented on. See D. A. Fitch, op. cit., supra note 21, at 173–74.

³⁰ 12 International Legal Materials 1319 (1973)

³¹ Art. 220(1). From the general language it must be inferred that proceedings by coastal states are not restricted to discharge violations but may be in respect to violations of international standards relating to design, construction, equipment, and manning.

³² It is submitted that this is consistent with the notion that the exclusive economic zone is not part of the territorial sea but retains in some respects its “high seas” character in which the freedom of navigation must be maintained.

³³ Art. 220(6). Originally the provision spoke of “a flagrant or gross violation.” See United Nations Third Conference on the Law of the Sea, A/CONF.62/ WP 10 1977, Art. 221(6).

³⁴ Part XII, s. 7.

³⁵ For varying use of terms contrast, for example, Arts. 20(2) and 211(5), which speak of “generally accepted international rules or standards,“ and Arts. 217, 219, and 220, which speak of “applicable international rules and standards.”

³⁶ In this connection see the comments of Lawrence L. Herman, supra note 21, at 18–19, where he suggests that if rules and standards embodied in an inter-national convention are binding on non-parties by virtue of the overriding principles in a law of the sea treaty, this may cause some states to hesitate in ratifying such a treaty.

³⁷ Ibid., at 22–23.

³⁸ In this regard it has been noted that the tanker boarding program in force in the United States since 1977 has been very effective in turning away from U.S. ports substandard shipping. As noted earlier a suitable co-operative arrangement between Canada and the United States could have significant impact on discouraging substandard ships calling at North American ports.

³⁹ See, for example, Art. 211 ( t ). See also Arts. 217(1) and 218(1).

⁴⁰ See supra note 20.

⁴¹ The former convention is reproduced in 14 International Legal Materials 959 (1974); for the latter see supra note 30.

⁴² For a recital of the casualties, see Note of the Government of the United States, Maritime Safety Committee, IMCO Doc. MSC XXXVI/20/3.

⁴³ For the text of the message, see ibid., at 2.

⁴⁴ The President’s message prescribed for tankers over 20,000 tons calling at U.S. ports, double bottoms on all new tankers, segregated ballast tanks, inert gas systems, back-up radar systems, including collision avoidance equipment and improved emergency steering standards for all tankers.

⁴⁵ Ibid.

⁴⁶ Many of these measures have since become law. See Ports and Waterways Safety and Protection of the Marine Environment Act, 1978 Pub. L. 95–474. For an instructive account of U.S. work in the field of tanker control, up to and including the 1978 Tanker Safety and Pollution Prevention Conference, see Flanagan, J.V. and Hunter, F.D., “The Environmental Heritage of the Argo Merchant,” (1978) 7 Boston College Environmental Affairs L. Rev. 1.Google Scholar

⁴⁷ Ibid., at 5.

⁴⁸ Report of the Joint MSC/MEPC Meeting, IMCO Doc. MSC/MEPC/10, Annex II.

⁴⁹ International Conference on Tanker Safety and Pollution Prevention, TSPP/ CONF/10.

⁵⁰ International Conference on Tanker Safety and Pollution Prevention, TSPP/ CONF./11.

⁵¹ Supra note 49, Art. 1У(3).

⁵² Supra note 50, Art. 1 (7) (b). The reason for this difference in approach is to be found in Annex II of the 1973 MARPOL Convention, dealing with maritime carriage of noxious liquid substances in bulk, which presents states with technical difficulties of implementation. The 1978 Protocol to that convention has removed that difficulty by, in effect, suspending the operation of the Annex. See Art. II.

⁵³ SOLAS Protocol, International Conference on Tanker Safety and Pollution Prevention, TSPP/CONF/10/Add.1, Chap. II, Regulation 29.

⁵⁴ Ibid., Chap. V, Regulation 12.

⁵⁵ MARPOL Protocol, International Conference on Tanker Safety and Pollution Prevention, TSPP/CONF/11/Add.1 Annex 1, Regulation 13.

⁵⁶ Ibid., Regulation 13E.

⁵⁷ Sufra note 53, Chap. II, Regulation 60(d).

⁵⁸ Supra note 41, Chap. I, Regulation 12.

⁵⁹ Supra note 30, Annex I, Regulation 5.

⁶⁰ See 1974 SOLAS Convention, supra note 41, Chap. I, Regulation 4, and 1973 MARPOL Convention, supra note 30, Annex I, Regulation 4.

⁶¹ SOLAS Protocol, supra note 49, Chap. I, Regulation 10(a), and MARPOL Protocol, supra note 50, Annex I, Regulation 4(1) (b).

⁶² SOLAS Protocol, Regulation 10(a) (ii).

⁶³ SOLAS Protocol, Regulation 6(b) and, MARPOL Protocol, Annex I, Regulation 4(3) (b).

⁶⁴ MARPOL Protocol, Annex I, Regulation 4(4) (c).

⁶⁵ It has been suggested that because of the competitive nature of classification societies, organized and run by shipowners for insurance purposes, that they have been prepared to relax standards and rules. See Doganis and Metaxas, supra note 9, at 105–9.

⁶⁶ MARPOL Protocol, Annex 1, Regulation 4(3) (c) and SOLAS Protocol, Chap. I, Regulation 6(3).

⁶⁷ SOLAS Protocol, Chap. I, Regulation 6(d), and MARPOL Protocol, Annex I, Regulation 4(3) (d).

⁶⁸ International Conference on Tanker Safety and Pollution Prevention TSPP/ CONF/12.

⁶⁹ Ibid., Resolutions 1 & 2. As of the date of termination of this article, neither protocol was in force.

⁷⁰ This comment is reported in Fairplay International Shipping Weekly, July 13, 1978, at 11.

⁷¹ International Conference on Training and Certification of Seafarers, 1978, STW/CONF/13.

⁷² The convention does, however, contain provisions which have implications for manning. For example, the requirement that the composition of the watch must at all times be adequate and appropriate to prevailing circumstances has obvious manning implications. See International Conference on Training and Certification of Seafarers, STW/CONF/15, Chap. II, Master Deck Department, Regulation 4(a).

⁷³ International Conference on Training and Certification of Seafarers, STW/ CONF/14, 15, 16, 17, 18, and 19.

⁷⁴ Supra note 71, Art. VI.

⁷⁵ Ibid, and supra note 73, STW/CONF/14, Chap. I, Regulation I/2, para. 3.

⁷⁶ Supra note 73, STW/CONF/15, Regulation II/5.

⁷⁷ Ibid. Regulation II/i, para. ii.

⁷⁸ Supra note 73, STW/GONF/14, Regulation 1/4, 3.

⁷⁹ This observation is based on discussions the writer had with members of the Canadian delegation to the Conference. It is noteworthy that the draft con-vention submitted to the Conference did not contemplate any powers of detention. See Report of the Maritime Safety Committee, IMCO Doc. STW X/7.

⁸⁰ Supra note 71, Art. 8(4).

⁸¹ Ibid., Art. XI.

⁸² Canada, for example, gives the Minister of Transport a discretion with respect to the acceptance of foreign certificates. See “Ship’s Deck Watch Regulations,” subsection 8(1), Canada Gazette, Part II, Vol. no, No. 12, SR/76–374.

⁸³ Two notable conventions which have a direct bearing on oil pollution from tankers were adopted in 1969 in consequence of the Torrey Canyon disaster, namely, the International Convention on Civil Liability for Oil Pollution Damage, U.K. Treaty Series 1975/106 and the International Convention on Intervention on the High Seas in Cases of Oil Pollution Casualties, U.K. Treaty Series 1975/77. Both conventions have been in force since 1975. In 1971 the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, U.K. Treaty Series 1978/95, was adopted and has been in force since 1978.

⁸⁴ The Council of IMCO has referred three subjects to the Legal Committee for study, the adequacy of compensation available to victims for oil pollution damage, mandatory reporting for masters of malfunctioning of their ships or vital equipment, and the regime of salvage and assistance. For progress of discussions at IMCO, see Reports of the Legal Committee at the 35th, 37th, 38th, and 40th sessions, IMCO Docs. LEG XXXV/4, paras. 40–68, LEG XXXVII/7, paras. 6–51, LEG XXXVIII/5, paras. 102–7 and LEG XL/5, paras. 6–46. There was further discussion at the 44th Session, November 17–21, 1980.

⁸⁵ IMCO is currently studying the various constraints placed on masters by owners and charterers. See Report to Council, Ad Hoc Working Group on the Relationship between Shipmaster, Shipowner and Maritime Administration, IMCO Doc. REL 1/4, 3–4. See also the remarks of the French Commission of Inquiry into the Amoco Cadiz incident supra note 31, Tome I at 144–45, Tome II at 30–32.

⁸⁶ For an instructive comment on the discussions on salvage in the Legal Committee, in particular, the shortcomings and limitations of some of the proposals, see Abecassis, D.W., “Some Topical Considerations in the Event of a Casualty to an Oil Tanker,” [1979] Lloyds Maritime Commercial L. Quarterly, 452–53.Google Scholar It seems that Lloyds has now produced an amended Lloyds Open Form designed to deal with the case of tankers that require salvage. See Bessemer Clark, A.F., “The Role of Lloyds Open Form” [1981], Lloyds Maritime and Commercial L. Quarterly 297.Google Scholar

⁸⁷ The need for implementation of adopted conventions has also been recognized by the European Community. See Action by the Commission of the European Communities concerning Shipping Safety and Pollution Prevention, reproduced in Marine Environment Protection Committee, 11th Session, Agenda Item 3, IMCO Doc. MEPC XI/3/1, and Resolution of the European Parliament, reproduced in Marine Environment Protection Committee, 11 th Session, IMCO Doc. XI/INF.2.

⁸⁸ In this respect, see the comments of K. Grundy, ibid., at 15–16, where he describes the pressure of the Liberian Shipping Council, composed of U.S. based international oil companies, as well as shipping companies from a number of leading maritime states, to improve the image of this flag by a better inspection service.

⁸⁹ Supra note 83.

⁹⁰ Supra note 83. Article 4 makes the Fund liable for oil pollution damage in the following circumstance: (a) because no liability arises under the Civil Liability Convention, (b) because the shipowner is financially incapable of meeting his obligations under the Civil Liability Convention (c) because the damage exceeds the shipowners’ limit of liability.