Modern Applications – Examples of the Theory and its Weaknesses

Modern Applications – Examples of the Theory and its Weaknesses

1. 
   The law of the flag tends to govern the internal discipline and administration of a ship.
   

• 
  In Williams Brooks v. Hess Oil (1987) U.S., Liberian law (law of ship’s flag) was applied despite the fact that the employer, seaman, union, collective bargaining agreement and waters were all American. The number of American contacts do not outweigh the rule that the flag controls the internal order and economy of foreign flag vessels. Exceptions to the rule were matters affecting the peace/dignity of the country or the tranquility of the port (interests analysis).
  
• 
  In Metaxas v. The Galaxias [1990], the Federal Court of Canada held that Greek law applied to the severance due to Greek seamen dismissed from a Greek vessel. Even though the ship was arrested in Vancouver port, the law of the port of registry was said to apply because a mandatory provision of Greek law made issue substantive instead of procedural. Court also argued that importance of encouraging commercial exchanges between nations and preserving international character of shipping was a factor.
  
• 
  Italian Navigation Code uses law of the flag, but of doubtful validity because of Rome Convention.
  

2. 
   Marriage on the High Seas
   
   • 
     The validity of marriage on the High Seas was the traditional example of the application of the law of the ship’s flag. A marriage celebrated today however would be recognized as formally valid if on the rules of solemnization of the law of the ship’s flag were complied with. One wonders if this would be true today.
     

3. 
   The law of the flag is only one connecting factor in respect of charterparties, but it can still be determinative.
   

• 
  In Coast Lines Ltd. v. Hudig & Veder Chartering [1972], Denning found that if all other things are equal, the law of the ship should govern in a contract of charterparty. Megaw LJ added that the law of the flag as a prima facie determinant of the proper law is out of fashion and rejected (should be one of many factors).
  
• 
  Note: The law of the flag will not govern charterparties where Hague or Hague/Visby Rules are invoked, or where Rome Convention applies (i.e. France, Italy). Originally considered to be the sole connecting factor now only one of a number of factors.
  

4. 
   The flag is no longer the sole or even the most important contact in respect of contracts entered into on behalf of a ship in a foreign port. – because of modern means of communication…
   

5. 
   The law of the flag continues to govern torts and delicts on the High Seas (e.g. R. v. Anderson, (1868)), but Tetley thinks that it would be better to look at all of the contacts.
   

• 
  This rule has special application for bi-juridical states like Canada. In Canadian National Steamships v. Watson (1939), the Supreme Court of Canada held that B.C. tort law should be applied because it was the port of registry, rather than the civil law of delict in Quebec where the suit was taken. [approach followed in Gronlund v. Hansen (1969) B.C.C.A]. Tetley feels that other factors should be considered here.
  

6. 
   The law of the flag is but one of the factors to be considered for shipboard crimes in territorial waters
   
   • 
     Chung Chi Cheung v. The King [1939] J.C.P.C - floating island theory rejected of R. v. Anderson, 1968.
     
   • 
     Has not been applied consistently and is but one factor to be taken into account.
     

7. 
   The law of the flag has been deemed to apply to all substantive issues for single ship allision on the High Seas (Titanic Case, (1914) U.S.S.C – substantive issues involving a British ship deemed to go by British law, but procedural issues, such as quantum of damages are under the law of the forum, in this case the U.S.). But, Tetley believes that this should not be so as this would allow ships flying flags of convenience or double registry to shop for better terms.
   

8. 
   Where two ships of the same flag collide, their common flag will determine jurisdiction provided that neither is a flag of convenience (U.S.A., France) or the general maritime law will be applied (England, Australia and Canada), including the Collision Convention 1910. Same result either way.
   

9. 
   Where two ships of different flags collide and both are parties to the Collision Convention 1910, then Convention (essentially law of the flag) will apply.
   

10. 
    Where two ships of different flags collide on the High Seas:
    
    • 
      Britain insists that “English maritime law” applies where a British ship is involved. That is, if suit is brought in England, the lex fori is applied.
      
    • 
      U.S. approach is that law of the flag cannot always be applied, but may be valid as a contact among others in cases where action is a tort in one country but not another. Where the maritime law of the countries is the same, it should be followed.
      

• 
  Rome Convention, 1980 – makes no mention of the law of the flag concept – most closely connected.
  
• 
  Australian Law Reform Commission – makes no mention of the law of flag, presumably and properly a contact only.
  
• 
  UK Law Commission, 1990 Draft Bill on Maritime Torts – “most real and substantial connection” other than for conflicts in tort and delict for personal injury, death and property damage where we use lex loci delicti.
  
• 
  Netherlands Conflict of Maritime Laws Act, 1993 – applies law of the flag for rights in rem in a ship, the scope, rank and consequences of a privileged claim against a ship in a bankruptcy sale, or to a collision where all vessels are form the same state.
  

3. 
   
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