Does STM challenge the legal system?
Dr Meixian Song at the Institute of Maritime Law at the University of Southampton is investigating the legal aspects of Sea Traffic Management within a team led by Prof Mikis Tsimplis and including Mr. Spiros Papadas, Prof. Ajit Shenoi, Prof. Filippo Lorenzon, Dr. Sophie Stalla-Bourdillon and Prof James Davey. By evaluating the legal implications of STM, challenges can be identified and overcome before STM gains practical application, thereby avoiding potential disputes in the legal domain. STM got to interview Dr Song about her views on the legal challenges for the STM concept and potential solutions to these issues.
Shipping is an industry with a very long history. How old is the base for maritime legislation and contracts?
Maritime law involves two international aspects. The first focuses on harmonising laws between states in order to facilitate and regulate sea trade activities. Elements of commercial maritime law date back to antiquity although what we presently have been developed and established over the last 200 years. The harmonisation of commercial maritime law is done within the context of the first legal aspect, whereas the second is known as the law of the sea. This is law concerned with the governance of the oceans and includes navigational rights and jurisdiction within the maritime domain. The oceans had long been subject to the doctrine of freedom of the sea- a principle which dates back to the seventeenth century. In the law of the sea is, in large part, codified in the United Nations Convention on the Law of the Sea (UNCLOS) although customary international law is still important.
Does the old legislation leave traces in current laws and contracts?
Many historical concepts and notions recognised at international level underpin the modern unification of rules relating to marine activities and governance. Great efforts have been made since the nineteenth century to create uniform rules which are recognised globally for both the commercial and international aspects of maritime law. The uniformity of legislation developed considerably since the establishment of IMO in 1958 which the specialised UN agency responsible for the regulation of shipping. Some old notions remain as part of our current legal framework, for example, salvage rights, general average liability as well as limitation of liability although many of them have been modified by international agreements and are differ greatly from the original legal arrangements.
Many aspects of shipping activities are normally controlled by parties through contracts. Contracts are essentially influenced and driven by practice and market forces. Standard forms of contracts such as charterparties, and bills of lading are routinely based on such standard forms. New legal issues which challenge the commercial status quo need to find their way into the standard contractual forms in order to become part of the standard practice.
How does this affect STM?
STM is a new practice and it has to be consistent with the current law and also be supportive of commercial shipping activity, both in terms of safe and efficient shipping operations as well as their commercial consequences.
STM has the goal of global dissemination by 2030, what legal aspects do you see as a challenge to this?
It seems that the STM project is not inconsistent with the current legal framework as far as we have studied. Therefore, we do not think there are any safety issue arising from the STM provided that its implementation is undertaken with a very clear strategy which ensures that STM facilitates, but in no way attempts to alter the arrangements concerning safety of navigation and operation of the ship.
However, there are significant commercial issues. As a matter of current commercial practice, inefficiencies in the carriage system due to delays in loading or discharge as well as speed reductions are primarily resolved under commercial contracts. This will need modification to support the STM concept. Finally we expect legal issues to arise in relation to data security and management.
The project will be beneficial in environmental and overall efficiency terms and these must be clearly demonstrated.
Port Call Synchronisation can save fuel and hence the environment by arriving just-in-time, are there any contractual show stoppers to realise this?
The concept of Port Collaborative Decision Making increases predictability and affects what different timestamps mean and their accuracy. However, depending on the type of contract involved, significant financial benefits may be available to shipowners who benefit from demurrage payments. Delay in arrival in some cases may create opportunities for other ships to arrive earlier and therefore a three way agreement between contractual parties and port authorities may be necessary to promote the STM concept. This issue will be discussed with BIMCO as soon as January 2017.
How can a smooth implementation of STM be realised?
We need to identify the risks and potential impact before we get STM out there. As I described earlier, the uniformity of law and contracts are playing significant roles in practice respectively, thus we need to validate the implementation from various aspects collaboratively.
Would changes in legislation or standard contracts be necessary, and if so how long time would that take?
There is no need for change in legislation as far as we can see. To the extent that the STM concept does not affect the safe navigation and management of the ship regulatory changes are not relevant. Changing contractual practice does not take much time to implement provided that the commercial balance is not disturbed. This is a very difficult issue that requires commercial rather than legal decisions to overcome. We need to communicate and cooperate, both between all partners in the project and with other stakeholders in the shipping industry, to seek the implementation of STM concepts without challenging the present legal system. That is the ideal and most efficient way forward.
How do you perceive the future for STM?
The STM concept has got many things to offer to the shipping world and the marine environment. In particular the environmental benefits in relation to greenhouse gas emission reduction from ships will increasingly pertinent as the 2015 Paris Agreement’s target of keeping the global atmospheric temperature increase below 2 degrees Celsius becomes more pressing.
Organisation: Institute of Maritime Law (IML), Southampton Law School, University of Southampton, UK
The team of researchers: Professor Mikis Tsimplis, Dr Meixian Song, Mr Spiros Papadas, Professor Filippo Lorenzon and Professor James Davey, Dr Sophie Stalla-Bourdillon, Professor R Ajit Shenoi.
Mission within the STM project: To study the effects of STM and analyse these effects in relation to the current legal framework set out by the international conventions such as UNCLOS, COLREGS, SOLAS, MARPOL and other relevant regulation. To study the effects of STM in relation to navigational and operational safety.