On Legal Aspects Of Places Of Refuge For Ship In Distress

In current maritime context, place of refuge for ship in distress is a typical maritime issue where a diversity of actors are involved, such as the distressed ship, ship-owner, coastal state and flag state. For purpose of safeguarding their own national interests, some states were reported to refuse entry of ship in distress requesting place of refuge in several momentous shipwreck disasters, especially in cases like the Castor and Prestige. Those reported cases are globally influential which impel some major maritime organization, in particular International Maritime Organization (IMO) and ComitéMaritime International (CMI) to make in-depth studies on the core issues regarding the place of refuge problem, which mainly focus on the conflicts and balances between the right of ship in distress seeking for entry of place of refuge and the right of coastal state preserving its own community interests, and also on the conditions under which the said rights may perform and other possible state liabilities as a result of refusal of entry.The complexity of the issue rests on not only the diversity of relevant actors of interest but also the cross-field of international law, e.g. general principles of international law, international law of sea, international environmental law, international humanitarian law and admiralty and maritime law. This dissertation mainly focuses on the legal aspects of this issue and in particular the respective rights and obligations between distressed ship and costal state. However, the potential state liabilities thereof will not be touched upon. Based on critical analysis of four current theories regarding the abovementioned conflict of rights, it is reasonably concluded that in the first place, the distressed ship's right of entry into place of refuge shall be recognized by international law as a general rule; and in the second place, as a exception, the coastal state may by case-by-case method exert its right to refuse entry of distressed ship for purpose of protecting its coastal safety. It is yet clouded that whether or not coastal states assume obligation under international law to provide assistance to ship in distress, but the overall trend is that states may bear more and more responsibilities to protect distressed ship seeking place of refuge in their territories. Some states or region, such as EU, have initiated some legislative directives imposing mandatory obligations upon its Members as to this issue.In order to prove the right of distressed ship seeking place of refuge, this dissertation particularly from a perspective of customary international law goes through different historical periods with a purpose of tracing and finding supportive evidences of pertinent maritime practices, including bilateral treaties, state legislature, judicial precedents and administrative polices, relating to this refuge custom. Some basis elements of this custom are summed up during the research, and also there established a burden of proof imposed on the distressed ship claiming the right of refuge. Specifically, the standard of proof shall meet the test of"necessity"which means the distressed ship shall prove the facts of its non-voluntary entry into the place of refuge under real and irresistible danger.This dissertation further carries on an original study on China's relevant legislature of different level, including bilateral treaties, laws, ordinances and local regulations and policies. And it is concluded that China has a set of relative well-enacted maritime provisions as to the issue of place of refuge for ship in distress. Due to limited materials obtained, it still needs further study and research in respect of China's judicial and administrative practices. As a sum-up, the trend and trait of problems of place of refuge are put forward for purpose of future studies on this issue.