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Universidade Autónoma de Lisboa
e-ISSN: 1647-7251
Vol. 15, N.º 2
November 2024-April 2025
389
THE MARITIME LIABILITY OF STATES
DUARTE LYNCE DE FARIA
duarte.faria@apsinesalgarve.pt
He holds a PhD in Private Law from Extremadura University, a PhD in maritime law, and a
master’s in international law from Lisbon University. He attends several schools and colleges,
such as the Naval Academy, Military University Institute, Maritime College, and NOVA School of
Law (Portugal). He holds a Naval Sciences Degree from the Portuguese Naval Academy. He is a
former naval officer who has also attended the General Naval War Course (1991) (Naval War
Institute) and the Postgraduate Course in Maritime Shipping and Port Management (2000)
(Economic and Management Faculty). In his professional career as a Navy officer, he attended
several courses in naval operations (namely, the specialisation course in communications, the
Maritime Tactical Course at HMS Dryad in the United Kingdom, and the Electronic Warfare Course
at the NATO School in Oberammergau, Germany) and performed various duties aboard
operational naval units at the Naval Tactics Instruction Centre and the Navy General Staff until
1997. From 1998 onwards, he left active service in the Navy. He was appointed deputy to the
Setubal Civil Governor, member of the Board of Directors of the Port and Maritime General
Institute, head of the cabinet of the Secretary of State of Ports and Maritime Administration,
director of the legal office and director of strategic projects for the ports of Setúbal and Sesimbra
Authority, and, for three terms, member of the Board of Directors of the port of Sines and the
ports of Sines and Algarve Authority. He has published around a dozen books and several
articles, primarily on the law of the sea, maritime law, and maritime safety law. The latest
monograph is “The (new) Law of Maritime Safety—the Ship, the States, the Conventions and
their Autonomy. The Energy Transition and the Consequences of the European Green Deal,”
which has a Portuguese (1st) and an English (2nd) edition.
Abstract
This article covers the maritime liability of states, focusing on their roles and responsibilities
as the flag state, the coastal state and the port state. It emphasises the need for closer
cooperation between coastal and port states and the International Maritime Organization
(I.M.O.) to address third-party competencies concerning the flag state. The text also
elaborates on the obligations of flag states and agreements with recognised organisations
(R.O.), including the mandatory need to comply with international standards for maritime
safety, navigation safety, marine environment protection, and crew living and working
conditions. It further highlights the crucial role of flag states in establishing and maintaining
an effective control system over their ships to ensure compliance with all international
standards and regulations. In conclusion, the research calls for strict enforcement of flag state
obligations to ensure maritime safety, prevent pollution from ships and maintain proper
shipboard living conditions.
Keywords
Coastal State, Flag State, Maritime Liability, Maritime Safety, Paris MoU, Port State,
Recognised Organisations (R.O.), Triple I Code, United Nations Convention on the Law of the
Sea (UNCLOS).
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
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Duarte Lynce de Faria
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Resumo
Este artigo aborda a responsabilidade marítima dos Estados, centrando-se nas suas funções
e responsabilidades enquanto Estado de bandeira, Estado costeiro e Estado do porto. Salienta
a necessidade de uma cooperação mais estreita entre os Estados costeiros e dos portos e a
Organização Marítima Internacional (O.M.I.) para abordar as competências de terceiros
relativas ao Estado de bandeira. O texto também desenvolve as obrigações dos Estados de
bandeira e os acordos com organizações reconhecidas (O.R.), incluindo a necessidade
obrigatória de cumprir as normas internacionais de segurança marítima, segurança da
navegação, proteção do ambiente marinho e condições de vida e de trabalho da tripulação.
Salienta ainda o papel crucial dos Estados de bandeira na criação e manutenção de um sistema
de controlo eficaz dos seus navios para garantir o cumprimento de todas as normas e
regulamentos internacionais. Em conclusão, o estudo apela à aplicação rigorosa das
obrigações do Estado de bandeira para garantir a segurança marítima, prevenir a poluição
causada pelos navios e o reforço das condições adequadas de vida a bordo.
Palavras-chave
Estado costeiro, Estado de bandeira, Responsabilidade marítima, Segurança marítima,
Memorando de Entendimento de Paris, Estado do porto, Organizações reconhecidas (O.R.),
Código Triplo I, Convenção das Nações Unidas sobre o Direito do Mar (UNCLOS).
How to cite this article
Faria, Duarte Lynce de (2024). The Maritime Liability of States. Janus.net, e-journal of international
relations. VOL 15 N.º 2, November 2024-April 2025, pp. 389-419. https://doi.org/10.26619/1647-
7251.15.2.17.
Article received on 27 March 2024 and accepted for publication on 8 September 2024.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
VOL 15 N.º 2
November 2024-April 2025, pp. 389-419
The Maritime Liability of States
Duarte Lynce de Faria
391
THE MARITIME LIABILITY OF STATES
DUARTE LYNCE DE FARIA
1. Introduction
1
According to each state's maritime laws, different authorities have various responsibilities
depending on their quality. States can usually take on the duties of either the flag state
or the coastal (and port) state.
Since the end of World War II, many of the flag state's powers have been transferred to
coastal states, archipelagic states, specialised international agencies of the United
Nations, and regional international organisations. These organisations include the
International Maritime Organization (I.M.O.), the International Seabed Authority, the
European Union, and international organisations on port state control. Compliance with
and monitoring maritime safety requirements has led to the limitation of freedom of the
seas.
The increased competencies of third parties concerning the flag state require closer
cooperation between the coastal states and the I.M.O. It also demands a collection of
competencies, mainly in maritime safety, that the I.M.O. and European Union now
practice in the national case.
In addition to their supervisory powers, flag states are increasingly delegating powers to
classification societies (usually included in the designation "recognised organisations" or
R.O.), eroding their powers gradually, which are now exercised under strict regulatory
standards.
Coastal states can monitor maritime traffic and intervene in situations previously
reserved for flag states, such as exercising innocent passage rights in territorial waters.
This right is one of the oldest customary international rules. Legitimising the coastal
state's intervention substantially reduces the scope of the right of innocent passage.
This situation also justifies the gradual autonomous legal framework of international laws
on maritime safety, which, like the Law of the Sea, should take precedence over the
activities arising from the use of maritime space. A ship that does not comply with
1
The framework and environment of maritime safety are laid down in our book, "The (New) Law of Maritime
Safety—the Ship, States, Conventions and their Autonomy," 2nd edition, Almedina, Coimbra, Portugal,
October 2023, ISBN 978-989-40-1295-5.
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international maritime safety requirements cannot sail, just as it cannot sail if it does not
respect the canons of the Law of the Sea.
Therefore, it is important to review the duties of states and R.O.s within this framework
to understand the link that should exist between them and the respective international
organisations.
2. Flag state obligations and agreements with recognised organisations
(R.O.)
2.1. The general obligations arising from international conventions
The current situation highlights the importance of flag states in fulfilling and enforcing
their duties. During its seventh session, the United Nations Commission on Sustainable
Development (U.N.C.S.T.D.) recommended adopting measures to ensure flag states
apply the International Maritime Organization (I.M.O.) conventions and other relevant
conventions. This measure guarantees that flag states' ships comply with international
and domestic standards.
Flag states are responsible for establishing and maintaining an effective control system
over their ships. They must ensure that their vessels comply with international standards
relating to maritime safety, navigation safety, marine environment protection, and crew
living and working conditions. If all parties comply with their obligations, individual states
may enjoy certain advantages by complying with instruments that promote maritime
safety, protect the marine environment, and prevent pollution from ships and shipboard
living conditions.
Articles 91 and 92 of UNCLOS require states to establish the requirements for attributing
their nationality to ships, their registration in their territory, and the right to fly their flag.
There must be a "substantial link" between the state and the ship. Article 94 establishes
that flag states must effectively exercise their jurisdiction and control over ships flying
their flag in administrative, technical, and social matters. They must keep a register of
ships, in which the names and characteristics of the ships flying their flag are recorded,
except those excluded from generally accepted international regulations due to their
small tonnage and size.
Moreover, states must exercise jurisdiction under domestic law over any vessel flying
their flag and the master, officers, and crew in administrative, technical, and social
matters. Regarding maritime safety, flag states must take necessary measures on their
ships to ensure safety at sea. Considering the applicable international instruments, this
issue includes the ship's construction, equipment, seaworthiness, composition, working
conditions, and crew training.
The measures to be taken by the flag state should include all those necessary to ensure
that each ship, before its registration and after that at appropriate intervals, is examined
by a duly qualified ship inspector. They should also carry on board the charts, maritime
publications, navigational equipment, and instruments appropriate for safe navigation.
Each vessel should be assigned to a master and appropriately qualified officers,
particularly concerning manoeuvre, navigation, communications and the operation of
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e-ISSN: 1647-7251
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machinery. The competency and number of crew members should be appropriate to the
vessel's type, size, machinery and equipment. Moreover, the master, officers, and, as
appropriate, the crew should be thoroughly familiar with and observe the applicable
international regulations concerning the safety of life at sea, the prevention of collisions,
the prevention, reduction and control of marine pollution, and the maintenance of radio
communications.
States can delegate powers to "recognised organisations", such as classification societies,
to perform statutory tasks that were originally the state's responsibility. Although the
ship's construction and technical regulations must comply with the flag state's laws,
ensuring compliance with the ship and crew's regulations during their lifetime under that
state's jurisdiction is even more crucial.
Article 93(3)(b) and (4) of UNCLOS, as confirmed and further developed by S.O.L.A.S.
and S.T.C.W., emphasise the importance of monitoring compliance with these
regulations.
2.2. The flag state's duties
The International Maritime Organization (I.M.O.) has outlined the duties of the flag state
in Resolution A.1070 (28), also known as the "Triple I" Code or "Implementation of I.M.O.
Instruments Code". This Resolution sets out the responsibilities of the flag state and
those of the coastal and port states.
The flag state is responsible for creating policies and regulations to implement the
requirements of all conventions and protocols on maritime safety and pollution
prevention, to which it is a party. It should also assign corresponding administrative
responsibilities to update and review the policies adopted. The flag state should also
allocate resources and identify processes to implement a maritime safety and
environmental protection program. This program should consist of issuing administrative
instructions for enforcing international standards and interpretative instruments,
including certificates issued by a classification society and compliance with applicable
international instruments through an independent audit and inspection program.
The flag state should train, evaluate, and certify seafarers' competencies and carry out
the necessary procedures for withdrawing, suspending, or cancelling certificates and
endorsements issued by it to comply with international standards of training,
certification, and watchkeeping for seafarers. It should investigate incidents and act on
deficient ships following relevant international instruments.
The flag state should ensure that ships entitled to fly its flag are efficiently manned and
take appropriate measures. Delegating powers to Recognised Organisations (R.O.s) is
another important aspect of the flag state's duties. This issue means that these private
entities can act on behalf of the state on ships flying their flag. They are delegated powers
for conducting surveys, inspections, and audits, issuing certificates and documents,
marking ships, and other statutory work required by I.M.O. or national legislation.
In delegating powers to the R.O., the state must ensure compliance with the application
requirements of the international instruments in force. The following requirements must
be met:
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a) The state must ensure the R.O. has adequate technical, management, and research
resources to complete the assigned tasks. These tasks must be performed to the
standards required for recognised R.O.s acting on behalf of the state and following
I.M.O. international instruments under Appendix 1 of Resolution A.739 (18).
b) The delegation of powers must be based on a formal written agreement between the
state and the R.O. This agreement should include, at minimum, the requirements
required by the I.M.O. under Appendix 2 of Resolution A.739(18). It should be in the
format of M.S.C./Circ. 710-MEPC/Circ. 307.
c) The state must issue specific instructions determining what action to take if a ship
does not conform to the maritime safety conditions required to sail. These measures
should include conditions that pose a high risk to the marine environment.
d) The state must provide the R.O. with the appropriate instruments of national laws and
regulations implementing the conventions. These instruments should specify for their
flagships if those standards are higher than the requirements of the conventions. The
R.O. should be required to keep up-to-date records to validate the implementation of
the requirements.
The flag state should promote the supervision and monitoring of R.O.s with adequate
resources to verify compliance with their international obligations. Through certified and
technically qualified inspectors, it should also promote supplementary surveys to ensure
that flag vessels comply with the requirements foreseen in the applicable international
instruments.
Regarding the enforcement of all obligations, the flag state should take the necessary
measures to ensure that ships which fly their flag and the entities and persons under
their jurisdiction comply with international standards, which include the following:
a) Banning flagships from sailing in violation of international standards;
b) Ensuring the periodic inspection of flag vessels, including the crews, their
certification, and their technical knowledge appropriate to the duties and conditions
on board;
c) Ensuring that the crew is capable of responding to emergencies and performing
functions vital to maritime safety or the prevention or reduction of pollution;
d) Providing national legislation for adequate and sufficiently dissuasive sanctions to
prevent infringement of the applicable rules;
e) Approving procedures for following up on reports of violations of international
standards by flagships and the holders of certificates issued under their
responsibility.
Regarding maritime incidents, the flag state is responsible for conducting investigations,
gathering statistical data, and responding to pollution incidents and deficiencies reported
by ports or coastal states. The I.M.O. emphasises the importance of qualified inspectors
conducting investigations and surveys and investigating ship incidents.
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e-ISSN: 1647-7251
VOL 15 N.º 2
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Let us try to list the framework of the obligations of the flag states as follows:
(i) Responsibility in the field of human and material resources
2
The flag state must ensure the human and material resources to meet its international
obligations, notwithstanding the delegation of powers to the R.O.s. This delegation
requires compliance with certain guidelines, particularly those issued by the European
Union, and cannot question the Maritime Administration's supervision of these entities.
(ii) Responsibility for the application of the Maritime Safety Conventions (including
those relating to training and certification of seafarers and conditions on board)
Flag states must ratify the 1982 United Nations Convention on the Law of the Sea
(UNCLOS) as the general regulatory instrument for all maritime activity, including the
status of ships, spaces under maritime jurisdiction, the right of navigation and the
general powers of states as flag, port or coastal states.
They must then approve and ratify the main conventions on maritime safety, particularly
those resulting from the work of the I.M.O. and the I.L.O. These conventions include the
six indicated in the "Triple I" Code and the Maritime Labour Convention, 2006 (M.L.C.),
concluded in the framework of the I.L.O., in addition to the CLC/FUND92 Conventions.
However, states are also called upon to ratify other I.M.O. conventions, most of which
appear in the list of abbreviations at the beginning of this paper.
(iii) Responsibility in the application of the Conventions
Flag states should encourage internal mechanisms to implement international
conventions, such as regular inspections of ships and issuing certificates of compliance
(S.O.L.A.S.) or crew competency certificates (S.T.C.W.), which must be provided
nationally.
(iv) Responsibility for the supervision of inspections
Under I.M.O. Resolution A.1070 (28), flag states should establish appropriate controls
over R.O.s carrying out ship inspections on their behalf, with adequate resources. State
delegation should be restricted to internationally recognised R.O.s, as provided in
Appendices 1 and 2 of Resolution A.739 (18).
(v) Responsibility for implementing the International Safety Management Code
(I.S.M. Code)
Flag states must implement the I.S.M. Code requirements for auditing safety
management systems (SMS) on flagships and shore-based companies responsible for
navigation. Flag states should also establish procedures for issuing and cancelling Safety
Management Certificates (S.M.C.) and Company Documents of Compliance (DOC).
(vi) Ensuring Maritime Safety
The flag state is responsible for "safety" and "security," which means that it is responsible
for fully applying the international conventions—particularly the seven referred to—
2
We will follow, in this point and part, the headings contained in the paragraph "Responsabilidades do Estado
de Bandeira" in work prepared by Sardinha, Álvaro on "Registo de navios e Estados de Bandeira", Coleção
Mar Fundamental, CMF0042013, Lisbon, September 2013.
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e-ISSN: 1647-7251
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including the International Ship and Port Facility Security Code (I.S.P.S.), which
incorporates the S.O.L.A.S. Convention, concerning the approval of security plans and
the issuing of international certificates for flagged ships.
Another convention that states are also encouraged to ratify is the I.L.O. Seafarers'
Identity Documents Convention, ILO 185 of 2003.
(v) Responsibility for implementing the Standards of seafarers' competence
When flag states comply with the necessary administrative measures to implement the
current version of the S.T.C.W. Convention (which vides the competence and certification
of internationally qualified seafarers), they will be included in the S.T.C.W. "white list"
(updated by the IMO MSC). Therefore, they must submit reports every five years,
identifying the shortcomings in training and certification systems and the corrective
measures taken to standardise them.
On the other hand, under Resolution A.1070 (28), flag states are required to issue
certificates and endorsements that accurately reflect sea- farers' competencies under
S.T.C.W., and endorsement applies to foreign seafarers on flagged ships, even if they
have certificates of competency issued abroad and provided that the foreign certificate
and the issuing country comply with S.T.C.W. regulations.
It is, therefore, indispensable that flag states keep records of certificates issued to
national seafarers and endorsements to foreign seafarers, giving prompt replies
confirming their validity.
(vi) Responsibility for the application of Maritime labour standards
Flag states should apply the Maritime Labour Convention, 2006 (MLC/LLC), particularly
by monitoring the application of standards for working conditions, food and catering,
medical care, and accommodation on board.
Flag states are also advised to take appropriate measures to approve Ships' Declarations
of maritime labour compliance and issue maritime labour certificates.
(vii) Approval of the security manning and seafarers' hours of work
Flag states should approve the various safe manning levels for flagged ships and the
issuance of safe manning documents and monitor compliance with the minimum
standards on seafarers' hours of rest under the S.T.C.W. and M.L.C. conventions, with
the relevant record.
(viii) Responsibility for incident investigation
Under the S.O.L.A.S. and M.A.R.P.O.L. Conventions and I.M.O. Resolution A.849, the flag
state is required to conduct investigations into "serious" and "very serious" incidents on
its ships and immediately following an accident, to cooperate with other states in the
investigation of incidents in which flagged ships may be involved.