The Prompt Release of Vessels and Crews before the International Tribunal for the Law of the Sea: A Preparatory Report

In: The International Journal of Marine and Coastal Law
Rainer Lagoni Law of the Sea and Maritime Law Institute, University of Hamburg

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The Convention provides in Article 292 special proceedings for the prompt release of vessels and crews before the International Tribunal for the Law of the Sea. As Article 292 is compulsory between the States Parties to the Convention, it can only be excluded by agreement. The new obligations and proceedings will balance the interests of the detaining state against that of the flag state in avoiding an excessive detention of vessels flying its flag. In an application for the release of a detained vessel, the flag state has to allege "that the detaining state has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or financial security". Only states may be parties to the prompt release proceedings. Each party shall be represented before the Tribunal by an agent. It is exclusively within the discretion of the flag state whom it will authorize to act as its agent. The flag state may define preconditions for a submission of an application for release on its behalf and remains in control of the release proceedings, because it is free to instruct the agent to abstain from the submission or to withdraw it. Like in any other proceedings before an international court or tribunal, the parties may have the assistance of counsel or advocates. The Tribunal shall determine the release as well as the nature, terms and amount of a reasonable bond or other financial security. In cases of lack of seaworthiness, where the question of bonding or other financial security is of no relevance, it may decide merely on the naked release.

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