JURISDICTIONAL CHALLENGES IN MARITIME DISPUTES – A COMPARATIVE ANALYSIS

Sunanda Malakar,

Campus Law Centre, University of Delhi

MARITIME DISPUTES – OVERVIEW

Maritime Disputes are disagreements between countries with different jurisdiction over issues such as territory, resources, or rights in seas, oceans, or coastal regions. various competing claims arise over fishing rights, oil and gas exploration, and the territory of Exclusive Economic Zones. Maritime disputes encompass a wide array of conflicts arising within the maritime industry.[i]

MARITIME DISPUTES CURRENTLY ACTIVE – ILLUSTRATION

Russia and Norway:

In the year 1970, the Russia and Norway conflict arose over fishing rights but since then it has evolved to include an oil and gas resources dispute. The conflict is that both the Russian and Norwegian regions are said to have potential petroleum reserves. The disputed area is regarding the Barent’s Sea known for its importance in the area of shipping and oil along with fisheries.

MARITIME DISPUTES AND JURISDICTIONS CHALLENGES -

As there is the involvement of different parties from different countries which is the cause of jurisdictional challenges. The determination of competent court or arbitration forum can be the cause of difficulty especially when the incident is related to different jurisdictions or there is involvement of disputes over international waters.

In terms of forms of different jurisdictional maritime disputes, two conflicts arise positive and negative conflict.

Positive conflicts include exclusive jurisdictional conflicts and competitive jurisdiction conflicts which will be discussed in the coming paragraphs.

Conflict of Exclusive Jurisdiction

In this kind of jurisdictions when there is a dispute the country has to decide what kind of legal relations has to be included under its jurisdiction and the consideration may be mainly in the actual interest of legal relations. In this kind of legal relations, political and economic disputes are mainly included.

Under exclusive jurisdiction dispute arises when both the parties of different regions bring a dispute involving the same maritime case and they all claim jurisdiction[ii].

Negative Conflict of Jurisdiction

In this case of a country over legal relations, a country has little relationship with national interests.

Conflict of Competitive Jurisdiction

When a country exercises this type of jurisdiction the requirement is that the jurisdiction of other countries is not to be infringed upon and the plaintiff has the right to bring about a case or proceedings among those countries which have jurisdiction by the law.

The application of forum non-conveniens –

The principle of Forum non-conveniens involves a process in which the home court in accordance to the domestic law or according to the relevant international conventions accepts that it is not equitable to exercise any jurisdiction over foreign-related commercial or civil matters and that it considers the fact that there is a more convenient way in which the cases can be heard and therefore the competent court may refuse to exercise the power of jurisdiction.

The courts of the United Kingdom, United States of America, Canada New Zealand, and Australia have accepted the principle of recognized forum non-conveniens. This principle is not only based on the principle of the refusal of the court to exercise its power of jurisdiction by suspending or terminating the litigation but can be also applied in reverse to prevent the parties from carrying out inconvenient litigation in foreign countries. The court while deciding these types of cases must consider the private interests of litigants as well as the public interests.

In the country of the United States of America, an action in rem is based on the principle of maritime claim that may be brought only in the jurisdiction of the federal court and is brought by arresting the property in question.

In the case of Rainbow Line, Inc. v. M/V Tequila,[iii] the second circuit held that an action in rem can be applied only to the enforcement of conflict of maritime lien or otherwise as permitted by statute.

The basic principle of action in rem is the doctrine of personification and this doctrine can be traced back to the era of British practice in the maritime courts in the 16th century but the English courts themselves abandoned it in the late 19th century due to the favouritism to the principle of procedural theory. According to the principle, an action in rem is only a means to force the vessel owner to appear in court in person rather than a real lawsuit against the vessel itself.

The Supreme Court of the United States interpreted the fiction of ‘anthropomorphism’’ in case of the Madruga v. Superior Court of State of CAL9[iv]. In this case, the vessel was accepted to have the legal right or the legal personality and was therefore regarded as a lawbreaker, and so was sued in the case of torts infringement and for the breach of contract.

In the Law of the Sea Tribunals, it is unclear if the Law of the Sea Convention has the jurisdiction to determine maritime boundary disputes involving the cause of land sovereignty issues.

Flag state jurisdiction – how it solves jurisdictional challenges

Flag state jurisdiction is the country’s authority over its ships on the high seas. In case of conflicts with other ships or any other disputes that cause rift with other countries, the flag stet jurisdiction comes into action as it provides the government the authority to administer its citizens’ actions even outside the home country's jurisdiction. It is the cornerstone that simplifies the compliance mechanism for ship owners and operators.

It is a cornerstone of maritime governance, granting a vessel registered under a specific flag the protection, privileges, and responsibilities of that state. This principle ensures uniformity and accountability, with the flag state overseeing compliance with international maritime laws and regulations. In the cruise sector, we can find three main challenges:

Conclusion –

Ships and cruises often cross through multiple routes and visit the ports of different jurisdictions. In these cases, conflicts are a common phenomenon in maritime scenarios but complication arises when there is a web of jurisdictional challenges and legal fundamentals or complications as the compliance of legal protocols and their enforcement becomes complicated. When the issue happens on board, deciding the jurisdictional responsibility becomes a difficult procedure that causes delays in dealing with or finding a resolution to the maritime disputes and the complex domestic laws of each country regarding maritime disputes often become a roadblock in handling the cases with accountability and thus investigation results in finding a resolution to both jurisdictional challenges and enforcement of standards of legal procedure.[v]

References-

[i] To The Point, Drishti IAS, 9 August 2024, 8:53 PM, https://www.drishtiias.com/to-the-points/Paper2/maritime-disputes

[ii] Ben Chau Fu Unification and Coordination of Maritime Jurisdiction: Providing a Judicial Guarantee for International Trade and Marine Transport, Frontiers, 9 August 2024, https://www.frontiersin.org/journals/marine-science/articles/10.3389/fmars.2022.848942/full

[iii] RAINBOW LINE, INC. v. M/V TEQUILA, 480 F.2d 1024

[iv] Madruga v. Superior Court of State of CAL, 346 U.S. 556 (1954)

[v] Challenges to Flag State Jurisdiction in Cruise Industries, Tethys Naval, 4 September 2024, 7:34 PM, https://tethysnaval.com/news/integrity-of-flag-state-jurisdiction/