This blog is written by Bhavana Ashok, a Third-Year Law student of The National University of Advanced Legal Studies, Kochi

Maritime law is a complex and fascinating field that governs nautical issues and private maritime disputes. Its roots stretch back centuries, with many of its core principles derived from ancient customs and traditions. These time-honoured principles continue to shape modern maritime law, adapting to new challenges while maintaining their essential character. The legal theory requires these two elements be proven to establish the existence of a rule of customary international law: general state practice and acceptance of practice by law or opinion juris[1]. Yet, these elements are flexible and depend on surrounding circumstances to allow for the growth and development of law. In this blog post, we’ll dive deep into six key customary principles that form the backbone of maritime law.

1. The Right of Innocent Passage

The principle of “The Right of Innocent Passage” or De mare liberum has been a cornerstone of maritime law.[2]. It was developed to preserve the traditional freedom of navigation in addition to several other related factors. This doctrine asserts that the high seas should be open to all nations for navigation, fishing, and other peaceful purposes. This customary law was crystalized by the UNCLOS in 1982. However, this principle is not absolute It must be interpreted and applied in light of the municipal law. This enables the courts to use this principle with a level of discretion to handle the dynamic issues that crop up. Therefore, it’s balanced against concerns such as environmental protection, resource conservation, and national security.

2. Flag State Jurisdiction

The principle of flag state jurisdiction is a fundamental concept in maritime law that stipulates that a ship is subject to the laws of the country whose flag it flies, regardless of its location[3]. This principle allows for a consistent legal framework to govern vessels as they travel through international waters, thereby providing a clear answer to the question of which laws apply on the high seas. This ensures that there’s always a legal system governing a vessel’s operations, crew relations, and any incidents that may occur onboard. This rule is codified in Part VII Article 92 of the UNCLOS, 1982, and has become the cornerstone of deciding maritime and environmental disputes across the globe. This principle was utilized in the ‘Enrica Lexie’ Incident (Italy v. India)[4] case by the Arbitral Tribunal to allow the flag state, Italy's jurisdiction[5].

Unfortunately, this principle has also led to the controversial practice of using “flags of convenience” where some shipowners register their vessels in countries with lax regulations or enforcement to reduce costs or avoid stricter oversight. This practice has raised concerns about maritime safety, labour standards, and environmental protection. As a response, the international community has developed concepts like “genuine link,” which requires a real connection between a ship and its flag state and allows countries to inspect foreign ships in their ports to ensure compliance with international standards, regardless of the ship’s flag.

3. Salvage Rights

The principle of salvage rights is deeply ingrained in maritime customs, reflecting the unique dangers and challenges of seafaring. It provides that those who assist in rescuing a vessel, its cargo, or its crew from peril at sea are entitled to a reward. This principle serves a crucial purpose: it encourages mariners to aid ships in distress, even when there’s no pre-existing duty to do so. At its core, lies the principle that salvors are entitled to reward and compensation for their services[6]. Salvage law has its origins in the sea laws of Byzantium and the Mediterranean seaport cities. However, the basic concept has remained remarkably consistent over time: the salvor or the party assisting is entitled to a reward based on the value of the property saved, the degree of danger involved, and the skill exhibited in the salvage operation. A key caselaw on this principle is the 1869 decision of the US Supreme Court The Blackwall[7] where it was decided that a salvor’s efforts need to be successful to recover a reward, which is known as the “no cure, no pay” principle in contract salvage. This has been prone to change over time to consider environmental law, the law of finds, labour law, etc. The 1989 International Convention on Salvage introduced the concept of “special compensation” for salvors who prevent or minimize environmental damage, even if they fail to save the ship or cargo. This addition reflects growing global concern about marine pollution and its impacts.

4. General Average

The general average is an ancient principle that embodies the concept of shared risk in maritime ventures. This principal dates back to the legal systems of ancient Greece, Rome, and the English Common Law. It provides that when sacrifices are made for the common safety of a maritime venture, the costs are distributed among all parties involved either proportionally or based on the contract. Once a vessel owner declares the General Average, a neutral third party or the adjuster appointed by the vessel owner, will determine the applicable costs owed to and by each stakeholder involved in the vessel voyage based on losses that qualify for General Average, total costs of the incident, as well as the amount each party owes, etc. It reflects the unique nature of maritime ventures where all parties are exposed to the perils of the sea and should therefore share in extraordinary losses incurred. While the principle remains important, its application has become more complex with the advent of containerized shipping and sophisticated marine insurance policies.

Conclusion

These customary principles form the bedrock of modern maritime law. They have evolved and been codified in various international conventions and national laws. They reflect the unique nature of maritime ventures, balancing the interests of various stakeholders while addressing the distinctive challenges of operating on the high seas. The relevance of these customs underscores the timeless nature of the challenges faced in maritime operations as these principles provide a sturdy compass, guiding the evolution of maritime law to meet new demands while honouring its rich historical traditions.

References:

[1] Martin Lishexian Lee, ‘The Interrelation Between the Law of the Sea Convention and Customary International Law’ (University of San Diego)

[2] Rüdiger Wolfrum, ‘Freedom of Navigation: New Challenges’ (Statement by the President of the International Tribunal for the Law of the Sea)

[3] Tomas Heidar, ‘The right of the flag State to make claims in respect of its vessels’ (IMO/ITLOS/IMLI/WMU Symposium on Flag State Responsibilities and the Future of Article 91 of UNCLOS)

[4] ‘Enrica Lexie’ Incident (Italy v. India), PCA Case No. 2015-28

[5] Arron N Honniball, ‘The “Enrica Lexie” Incident Award and Exclusive Flag State Jurisdiction’

[6] Shrikant Pareshnath Hathi and Binita Hathi, ‘Salvage’ in Shrikant Pareshnath Hathi and Binita Hathi, Ship Arrest in India and Admiralty Laws of India (15th edn, 2024) ch 16

[7] The Blackwall 77 U.S. 1 (1869).