International Maritime Conventions
Sources of law are the authorities from which the law is made: the constitution of a
State, its statutes, government regulations, and the well-recognized maritime uses
and customs. Also, in common law countries, case law is probably the most relevant
source of law (judicial binding precedent). Taking into account that this Volume is
not devoted to any particular national law, the reader should refer to his/her own
legal system to complete the set of rules that would apply to the specific maritime
issue. However, international maritime conventions deserve special mention.
This Chapter does not deal with the process of how a maritime convention enters
into force. From the very beginning (when the need to promote a uniform rule is
identified) to the very end (when the convention is incorporated and implemented),
the time elapsed is normally longer than anyone would wish. However, the complexity
of achieving uniformity is not only in terms of timing, but also in terms
of procedure. Preliminary papers, working groups; distribution of questionnaires
among States Parties; drafts, discussions, diplomatic conference, debates, votes;
approval, signature, ratification, acceptance, accession, conditions of entry into
force, incorporation into national legal systems; eventual reservations; interpretation,
application, and implementation by the judge; eventual appeals to higher courts; and measures of enforcements are the usual steps to be taken in order to apply an international maritime convention in practice.
Clearly, the goal of uniformity is not always achieved. However, last century saw
a number of international conventions dealing with most aspects of both private
and public maritime matters. Consequently, maritime conventions have become
the first source of law in the pursuit of uniformity. Although a discussion of each
of these conventions is beyond the scope of this Chapter, and bearing in mind
that most of these conventions are discussed elsewhere in this Volume, it suffices
to mention that conventions have been adopted in the areas of ship registration,
maritime liens and mortgages, arrest of ships, maritime safety, maritime
labour, carriage of goods by sea, multimodal transport, carriage of passengers
and their luggage by sea, marine collisions, salvage, wreck removal, and
limitation of liability.
International Shipping Documents
Although international maritime conventions are an essential tool to achieve uniformity,
there are other instruments that, even though they are private documents,
the maritime community accepts as uniform rules of conduct in solving shipping
problems. The difference between the convention and the document is that the
convention is a treaty signed by States and therefore carries with it international
obligations. The shipping document is a private instrument and is therefore binding
only if agreed by the contractual parties (pacta sunt servanda). That freedom to
agree has been so well expanded into the maritime community that, it can be said
without prejudice, some of these international documents, like the York–Antwerp
Rules on General Average or the International Commercial Terms (Incoterms),
have done even more than several conventions to achieve the scope of uniformity.
The subject matter of these documents is diverse as explained below.