The flag or ensign of a ship is a very basic part of maritime tradition. Assorted maritime flags that flutter on every ship testify to centuries of seafaring heritage and tradition.
If you ask a child to make a drawing of ship, without exception they will add a flag.
Before the era of radio telecommunication ships flags were mainly used to communicate. Again, following tradition, the ensigns were and are required to be flown when entering and leaving a harbour, when sailing through foreign waters and when the ship is signalled to do so by a warship.
What is defining the Nationality of a Merchant Navy Ship?
Historically, national states have been ascribing nationality to ships in the same way they would ascribe nationality to citizens. This practice had a number of purposes. Firstly, ship owners felt the need for protection of their ships, whilst these were sailing on the high seas, exposed to a number of dangers, including piracy. The granting of nationality to the ship – and the consequent right to fly the flag of that country – allowed the ship to seek protection of that country against any individual or third state which threatened the interests of that ship. Secondly, the granting of nationality signified the jurisdiction of that state over the ship and therefore the relations amongst the members of the ship community were governed by a specific set of rules.19
Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag.3
Until recently the nationality of a ship was simply determined by the nationality of her owners. For instance, if more than 50% of the owners of a ship had the Belgian nationality the vessel automatically obtained the Belgian nationality and was entitled to fly the Belgian Flag. Nowadays a ship obtains a nationality by simple registration in a national register of origin. All rights in rem (legal rights) are connected to this register of origin. The nationality of the ship is proven by her certificate of registry.
Flag State refers to the authority under which a country exercises regulatory control over the commercial vessel which is registered under its flag. This involves the inspection, certification, and issuance of safety and pollution prevention documents.20
Duties of the Flag State as Defined by the IMO
The duties of a Flag State have been defined through various international conventions and regulations such as the following: the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), the International Convention for the Safety of Life at Sea (SOLAS), the International Convention on Standards of Training, Certification and Watch keeping for Seafarers (STCW 78/95), the Convention on International Regulations for Preventing Collisions at Sea (COLREG) 1972, the International Convention on Load Lines (LL) 1966, and the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
The role of the Flag State
IMO, being the only international rule-maker with a universal impact, is promoting the safety at sea and protecting the marine environment by means of coordinated system of international conventions, rules, codes and recommendations. However IMO has no direct authority on board of the ships. The Flag State, as defined by the United Nations Convention on the Law of the Sea (UNCLOS)3, in particular in article 91
(Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship’ (91.1) and that ‘Ships shall sail under the flag of one State only and… shall be subject to its exclusive jurisdiction on the high seas.’ (91.2)),
article 94 (Duties of the Flag States), 97 (Arrest)
No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the Flag State in relation to matters of collision or any other incident of navigation on the high seas
and 217 (Enforcement by Flag States) has overall responsibility for the implementation and enforcement of international maritime regulations for all ships granted the right to fly its flag.
It is important that the Flag States participate in the work of the international organisations, such as the IMO and act as a middleman between these organisations and the ship-owners.
Bearing the above in mind and focussing on the medical aspects of shipping this entails that the flag state has an important responsibility when it comes to the living and working conditions on board of the ship flying their flag, the sanitary conditions, the medical stores put on board, the equipment of the hospital, the training of the crew and responsible officers, the application of the work and resting periods as put forward in STCW95 and emphasised by STCW2010.
The certificates of competence issued to the crew are the sole responsibility of the flag state. This means they are governing the training standards including first aid instructions and advanced medical education.
They also have to provide medical facilities ashore able to give the necessary support the flag ships and to execute or coordinate the required inspections.
The flag state can put forward extra conditions to guarantee the medical fitness of the crew on board their ships. See also 14.2.8 in this context.
Flags of convenience
Correct application of the IMO rules is sometimes difficult and expensive. Not all of the Flag States are showing the same sense of duty when it comes to enforcing the new standards. These substandard flags are commonly referred to as “flags of convenience” or “open registers”. A flag of convenience or FOC is a foreign flag under which a merchant vessel is registered for purposes of reducing operating costs or avoiding government regulations.21
Open registers do not enforce safety standards, minimum social standards or trade union rights for seafarers.22
Fig. 6 FOC Countries23
The following 34 countries have been declared (2012) FOCs by the International Transport Workers’ Federadion (ITF) Fair Practices Committee (a joint committee of ITF seafarers' and dockers' unions), which runs the ITF campaign against FOCs:
Antigua and Barbuda
It is obvious that FOC’s lower standards of maritime safety and security and are economically unhealthy since they are competing by accepting less costly standards. This lack of responsibility by the substandard Flag States has been one of the factors leading to the rise of port state control.
A Flag State’s reputation depends upon the statistical data provided by port states on an annual basis. If a Flag State makes the so-called “blacklist” or “targeted list,” there are major repercussions for the owner who flies that particular flag. The owner’s vessel will be subjected to an increased amount of port state scrutiny due to the negative reputation of the Flag State. At minimum, there will be a loss of time and the likelihood of increased detentions.
Flag State responsibilities as defined by the International Chamber of Shipping (ICS) & The International Shipping Federation (ISF)24
A Flag State should clearly have sufficient infrastructure, in terms of qualified and competent staff, offices and equipment, to meet its obligations under international treaties. Different flags have different approaches, e.g. staffing may depend on the extent to which flags delegate certain functions to bodies such as classification societies.
International maritime treaties
All Flag States should endeavor to ratify the principal international maritime treaties, including those adopted by IMO and ILO.
As a minimum, Flag States should be expected to have ratified the following ‘core’ international maritime conventions: SOLAS 74 (Including ISM & ISPS), MARPOL 73/78, Load Lines convention, STCW 78, ILO 147 & CLC/Fund 92.
In addition to the principle maritime conventions mentioned above, and the United Nations Convention on the Law of the Sea (UNCLOS), flag states are particularly encouraged to ratify and implement the following more specific IMO Conventions: Control and Management of Ships’ Ballast (BWM); Anti-fouling Systems (AFS); Limitation of Liability for Maritime Claims (LLMC) and its 1996 Protocol; Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS); and Civil Liability for Bunker Oil Pollution Damage (Bunkers)
mplementation and enforcement
As a minimum, it is reasonable to expect Flag States to have implemented the detailed requirements of the international maritime treaties listed above, and to have established effective mechanisms for their enforcement. This should include the regular visiting/surveying/certification of the ships. The crew must be in the possession of certificates of competence issued or recognized by the Flag State.
Supervision of surveys
In accordance with IMO Resolution A.739, Flag States should establish appropriate controls over organizations, such as classification societies, nominated to conduct statutory surveys of ships on their behalf. The delegation of statutory survey work should be restricted to ‘Recognized Organizations’ that comply with IMO Resolution A.739. In practice this will usually mean internationally recognized bodies, such as members of the International Association of Classification Societies (IACS).20
International Safety Management Code
Flag States should have implemented the requirements of the ISM Code concerning the auditing of safety management systems (SMS), both on ships flying their flag and the shore based companies responsible for their safe operation. Flag States should also have established procedures for the issue and withdrawal of ships’ Safety Management Certificates (SMCs) and companies’ Documents of Compliance (DOCs).
Flag States should have implemented the relevant requirements of the SOLAS Convention and the International Ship and Port Facility Security (ISPS) Code concerning the approval of Ship Security Plans, the issue of International Ship Security Certificates and the provision to ships of Continuous Synopsis Records.
Flag States are also encouraged to ratify and implement the ILO Seafarers’ Identity Documents Convention, 2003 (ILO 185).
Seafarers’ competence standards
Flag States should appear on the IMO STCW ‘white list’ of governments that have demonstrated compliance with the administrative measures needed to implement the STCW Convention.
Flag States should issue STCW recognition endorsements to foreign officers serving on ships flying their flag even when they have been issued with certificates of competence by another country. The Flag State should have procedures in place to ensure that the foreign certificate issuing country complies with STCW training and certification standards.
Flag States should implement the requirements of the ILO Maritime Labor Convention, 2006, including, but not limited to, the inspection and enforcement of ILO standards covering conditions of employment, food and catering, medical care and accommodation; the approval of ships’ Declarations of Maritime Labor Compliance; and the issue of Maritime Labor Certificates.
Safe manning and seafarers’ working hours
Flag States should approve safe manning levels for ships flying their flag and issue safe manning documents, in accordance with the provisions of IMO Resolution A.8902.
Flag States should strictly enforce minimum seafarers’ rest hours that comply with the ILO Maritime Labour Convention (MLC 2006) in addition to the IMO STCW Convention. Flag States should require work/rest hours to be recorded in accordance with joint IMO/ILO Guidance.
In accordance with IMO Resolution A.849, and taking into account the provisions of SOLAS and MARPOL, a Flag State should carry out investigations of any ‘serious’ and ‘very serious’ casualty occurring to its ships, as soon as practicable after the casualty. Flag States should also co-operate with other nations investigating casualties in which ships flying its flag may be involved. The relevant findings of such investigations should be forwarded promptly to IMO, and should be made available to the industry and other interested parties.
Movement of ships between flags
A Flag State accepting a ship transferring from the flag of another state should only accept such a ship when it is satisfied that it is in compliance with international requirements, and has survey reports confirming that the ship is in class. Flag States whose ships transfer to other registers have an obligation to provide all necessary information to the new Flag State in which the ship is registered.
Repatriation of seafarers
In normal circumstances the employer is responsible for the repatriation of seafarers. Nevertheless, as required by the ILO Maritime Labor Convention, a responsible Flag State should institute arrangements to ensure that in the rare event of normal procedures failing (eg due to bankruptcy of a shipping company) the seafarers working on board any ships flying its flag, including those that are nationals of other states, are repatriated to their country of residence.
IMO Member State Audit Scheme
Flag States should participate in the IMO Member State Audit Scheme in order to identify areas for possible improvement with regard to the implementation of IMO instruments, and which may benefit from IMO technical assistance programmes.
In the interests of transparency and continuous improvement, the industry organisations believe that Flag States should publish the results of the IMO audits for the benefit of the industry as a whole.
Participation at IMO and ILO meetings
In order to keep appraised of the latest international maritime regulatory developments (and contribute to the decisions made by IMO), Flag States should be expected to attend all meetings of the following IMO committees:
• Maritime Safety Committee (MSC)
• Marine Environment Protection Committee (MEPC)
• Legal Committee (LEG)
• Biennial meetings of the IMO Assembly.
If possible, Flag States should also participate in IMO Diplomatic Conferences and relevant technical sub-committees of IMO, including the Sub-Committee on Flag State Implementation, as well as major maritime meetings of the International Labour Organization.
Consultation with ship-owners
Flag States should have some form of consultative process to enable ship operators to engage in discussions about maritime regulatory developments and other issues relevant to the safe operation of ships flying their flag.