A Study of Seaworthiness under Port State Control

• Main Authors: Ju-Enn Chiang, 江姿瑩
• Other Authors: Frank Yiin
• Format: Others
• Language: zh-TW
• Published: 2012
• Online Access: http://ndltd.ncl.edu.tw/handle/15963473087373445676

博士 === 國立臺灣海洋大學 === 海洋法律研究所 === 100 === Port State Control (PSC) is a complementary administrative measure taken by Port State to eliminate the sub-standard ships from the shipping industry. Its ultimate purpose is to pursue the substantial seaworthiness of ships by way of checking the related seaworthiness documents required by laws in order to safeguard the security of sailing and protect the ocean environment. As PSC is mainly practiced by regional cooperation through regional agreements, the responsibility to safeguard against sub-standard ships lies with the Port State. Therefore, the Port State Control is also defined as the control procedure of foreign flagged ships in national port. Due to the uncertain sovereignty status of Taiwan, Taiwan is neither a member of the United Nations Convention of Law of the Sea (UNCLOS), nor the International Maritime Organization (IMO). For Taiwan’s heavy economic reliance on shipping industry and protecting the ocean environment, the Ministry of Transportation and Communication promulgated an administrative order to invoke the procedures for Port State Control adopted in the IMO Assembly Resolution A. 787(19) via the Article 50 of the Commercial Port Law. However, that this administrative order invoking the Conventions that Taiwan was not a contracting party was in no-compliance with the Constitution and had obviously been against the principle of legal reservation and raised the issue involved in blank authorization, which hesitated the port state control officers to enforce their rights empowered by the order. With the urgent need of legal authorization for the enforcement of Port State Control and the verification of the Separation of Government from Enterprise principle, the Commercial Port Law was finally amended and promulgated at the end of 2011. The purpose of this research is to analyze the legitimacy of seaworthiness under Port State Control from both international and national legal aspects on the basis of current laws and recent development of Port State Control system. Meanwhile, this research also tries to clarify the legal characteristics and explore the remedies of unlawful detention in Taiwan by means of taking the national, international laws, and related cases as references. Finally, the conclusion presents a substantial proposal for the legislation and modification of both the Taiwanese Maritime and Admiralty Laws. Hope this can make some contributions to completing the Port State Control system in Taiwan.