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saerTaSoriso samarTlis Jurnali, #1, 2008 JOURNAL OF INTERNATIONAL LAW, N1, 2008
from the ship. In relation to American Ship
“Tempset” particular amendment has been
made into this rule, when in Havre Port the
assistant to the captain has killed one of the
crew members and wounded another one.
In this case the Court exercised the jurisdiction,
since the incident has disturbed the
peace. 16
Anglo-American approach implies that in
case of nonexistence of relevant agreement,
each State shall exercise its jurisdiction over
its internal waters. English courts, in the internal
waters of Great Britain declare complete
jurisdiction over the crew of ships of foreign
States. In “Regina v. Cunningham” case three
American sailors were punished for assault on
other sailor on a board of a ship, which was
anchoring nearby the coasts of England – because
the crime was committed on the territory
of England. 17
The assertion of the fact that the merchant
ship shall be considered as a “sailing” territory
of flag State was resulting in conflict between
jurisdictions. However, this postulate is
unreasonable especially, in so called “open
registers” era. Even in 1923 (this idea) was
refused by the Supreme Court of the USA in
Cunard S.S. Co. v. Mellon case. Statement
sometimes made that a merchant ship is a part
of the territory of the country whose flag she
flies. But this, as has been aptly observed, is a
figure of speech, a metaphor, is mainly applicable
to ships on the high seas, where there
is no territorial sovereign, and as respects
ships in foreign territorial waters, it has little
application beyond what is affirmatively or tacitly
permitted by the local sovereign. 18
However, the abovementioned does not
mean that jurisdiction of a flag State is completely
terminated, when the ship is in the internal
waters of a foreign State. In this case
so called “parallel jurisdictions” may be operating.
For example, the Court of the United
States in Benz v. Compania Naviera Hidalgo,
S.A. case established that, on dispute between
a foreign employer and a foreign crew the law
of the USA shall not be extended in the internal
waters of the latter in case when the only
American connection was that the ship was in
transit passage in the United States port. 19
Though, when the ship is staying in the USA
waters for a certain period, it is loading and/
or unloading in the ports of the USA, the claimant
is the Citizen of the USA, the legislation of
the USA shall definitely extend over the ship. 20
In case of agrave crime, only the fact that
a ship is standing in the port is a sufficient
ground for exercising the jurisdiction. This
approach has been noted in “Wildenhus”
case, when a crew member of the Belgium ship
killed another member while the ship was
standing in one of the ports of the USA. 21
In accordance to the legislation of Georgia
if the crime is committed on the territory of
Georgia (including the internal waters) the
criminal jurisdiction of Georgia shall be applied.
22 However in the bilateral agreements it
is noted that of the criminal law jurisdiction of
Georgia extends over the ships of foreign
States in the ports of Georgia if: the results of
the crime extends on the territory of Georgia,
the security of the country in under the risk,
the crime is committed by the citizen of Georgia
or against him/her, or it is connected to
the illegal traffic of narcotics drugs. Georgia
has concluded such bilateral agreements with
Greece, Ukraine, Azerbaijan, Russia, Cyprus,
Turkey, etc. 23
As it is obvious from the aforementioned
examples, the States do not interfere in internal
regulation of the ship, in labour and civil
disputes between the crew members.
In a viewpoint of exercising jurisdiction, in
passed decades the issues of environment
protection acquired paramount importance. If
we take into consideration that the coastal
area – the most productive area of the sea –
is mostly infringed by the harmful influence on
the marine environment, 24 it does not astonish
that upon the exercise of the jurisdiction
by the States, the most importance is given to
the issues of protection of environment.
Problem regarding the protection of marine
environment especially gained its importance
from 60 th -70 th of XX century. In this respect
in parallel with the increase of obligation
of a flag State the right of a coastal State
to control the marine environment under its
jurisdiction, and exercise not only legislative,
but executive jurisdiction, which is very important,
is also increasing.
Although, there are numbers of sources, 25
in the sphere of the present research only
marine pollution from the ships is envisaged.
Part XII of the Convention is devoted to the
protection of environment. 26
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