La chaîne de responsabilité de la sécurité maritime

Although supposedly improving, the present state of maritime safety is not as enviable as the statistics on the subject might show. A series of accidents culminating in the sinking of the Erika near the french coast on december 1999 prove that many failings persist, particularly in its legal regime. These failings essentiaIly have to do with the deficient application of the existing rules and even their avoidance by the actors involved in this field. The above-mentioned sinking showed that this deficiency and avoidance is not to be associated with a few isolated actors, traditionaIly identified as being responsible for all the problems in maritime transportation, be it 'irresponsible' shipowners or Flag States 'of convenience', but that it is to be found throughout the entire chain of actors involved in the application of the nonns relating to maritime safety. In fact, all of these actors were found to bear sorne degree of responsibility or blame for the events leading up to the Erika tragedy; from the shipbuidmg or shiprepair yards all the way up to the various port State administrations which inspected and/or detained the ship, including the ship's owners, managers, bankers, insurers, classification societies, Flag State, charterer, captain and crew, to name a few. Therefore, the Erika matter revealed the existence - and true extent - of what has come to be known as the "chain ofresponsibility" in maritime safety. It is this chain of actors and the various measures (legal and other) that have been taken to ensure its improvement and, by definition, the improvement of the legal regime of maritime safety as a whole - in view of a better application of nonns - that we attempt to analyze. In this respect, we proceed from what can be identified as the fundamental duality of the concept of maritime safety, namely ship safety and shipping safety. In analyzing ship safety we first refer to the rules having to do with the design construction, maintenance and repair of ships. Following a brief overview of the context in which these rules are drafted - itself fraught with uncertainties - and their content, a study of the actors involved in their application during each of these operations reveals the failings in this field. We then analyze the various types of controls existing in view of ensuring that this safety is maintained and in particular the certification, inspection and sanctions regime. The defects in this regime emanate from the proliferation of these diverse controls. Traditionally reserved to classification societies and flag states (as prescribed by international law), these controls are now as weIl being exercised by various port states and about half a dozen individual actors. The nature and extent of these controls is therefore analyzed as well as the various initiatives and developments relating to each. As for shipping safety, this has to do as much with the various conditions of operation of a ship as with the transport operations themselves. The conditions of operation of a ship essentially refer to the safety of its management as well as that relating to the crew. Regarding safety of management, following an overview of the nature and present-day functions of the shipowner, we study the various management practices through the industry as weIl as the recent attempts (at the international level) to regulate and improve these. As for safety matters relating to crew, these refer as much to the crew' s competence as to their working conditions aboard the ship - that they refer to their individual or collective rights - including the efforts - in the international scene as well - to regulate and improve these. A brief overview of the responsibility of the ship' s captain in the event of an accident at sea follows. The (main) transportation operations, name1y port and navigational operations as well as the regime prevailing when these 'end', namely the practice of ship recyc1ing, are, finally, analyzed. Regarrding port operations, deficiencies in safety emanate as much through port infrastructures, services as well as personnel. As for navigational operations, we first analyze the various developments relating to safety in national waters, namely navigational aids as well as vessel traffic services offered by coastal States, and then explore the failings of the international navigational system in the high seas. We finaIly, refer to the practice of ship recyc1ing where initiatives have recently been taken by the industry to improve safety matters foIlowing a better awareness of the potential implications of the practice as relates to safety (and in particular environmental) matters. This research is current as of August 30th, 2002.

Keyphrases: Maritime Law, Maritime Safety, Application of Norms, Actors Involved