Enforcement of port state jurisdiction | The Daily Star
12:00 AM, September 06, 2016 / LAST MODIFIED: 12:06 AM, September 06, 2016

law in-depth

Enforcement of port state jurisdiction

Port conceives pivotal role in international maritime commerce. The 1982 UN Convention on the Law of the Sea (UNCLOS) does not provide any definition of port. However, maritime dictionary refers to 'port' as harbour for ships to moor, load or discharge. The movement of seagoing vessels in a port requires care and supervision for safety and efficiency of a port. Therefore, it is a concern of port state to maintain and safeguard port facility.

'Port state jurisdiction' is concerned with a port state's prescriptive jurisdiction over foreign vessels visiting its ports. The jurisdiction encompasses inspection of safety standard of foreign ships; to regulate handling of dangerous goods and to conduct investigation in maritime accident or casualty. In latter days, there is global trend in expansion of port state authorities.

As port state and maritime nation, Bangladesh has responsibility and obligation to enforce jurisdiction to safeguard marine resources. Geographical location of Bangladesh in the Bay of Bengal realm indicates its dependence on sea for both prosperity and security issues. There are mainly two seaports in Bangladesh: Chittagong and Mongla. The Chittagong sea port is the principal seaport of Bangladesh. In present time, the Chittagong port is located by the Karnaphuli river, an estuary located in Patenga.  More than 90 percent of the country's export-import is conducted by the Chittagong port. In the preceding year 2015, the Chittagong port has accomplished two million TEU (i.e. Twenty-foot Equivalent Unit) container handling. The Mongla port is situated in the south-western part of Bangladesh. The port is located by the confluence of the Pussur river and the Mongla river.

The Port Act, 1908 and the Port Rules, 1966 are the primary legislation in Bangladesh as to exercise of port state jurisdiction. The Port Act of 1908 refers directives to ship owners and port authorities and enumerates the authority of government regarding port functions. The Ports Act, 1908 consists 69 sections and a schedule. The chapters of the Act encompass issues relating to government's rule making power; powers and duties of port officials; safety of shipping and conservation of ports; port revenues; fines and penalty; navigation signal. Section 3(4) of the Ports Act, 1908 of Bangladesh defines 'port' as any part of a river or channel. Section 6 deals as to power to make port rules. The Protection of Ports Act, 1948 provides measures for protection of ports. The act mainly eyes on rules and regulations for entry into the port.

The Bangladesh Merchant Shipping Ordinance, 1983 deals with issues relating to merchant shipping and the exercise of port state jurisdictions on foreign flagged vessels. As per wordings of section 411 any foreign flagged vessels are not allowed to engage in coasting trade of Bangladesh. Section 489 mentions that where any offence is committed on board of a foreign ship, on the coast of or  into any bay, channel, lake, river, or other navigable water of Bangladesh, the Court of Magistrate would have the jurisdiction to take cognizance of the alleged offence and to try the case. According to Section 490 of the Ordinance, if any foreign ship occasions any damage to government property or to any citizen of Bangladesh, the Supreme Court of Bangladesh may detain any ship to satisfy the damage.

In comparison with international legal regime, the legal framework of Bangladesh falls short of proper exercise of port state prescriptive and enforcement jurisdiction. The Bangladesh Merchant Shipping Ordinance, 1983 as to merchant shipping has abseiled into an ineffective law. In preceding three decades, the merchant shipping ordinance has not been amended in compliance with international norms and rules.

The port adjacent maritime zones of Bangladesh are rigging with vessel source pollution. Among various reasons behind such pollution, foreign flagged vessels entering into the port of Chittagong, play significant role. Shipping activities and operations in port area often lead to certain negative environmental impacts. Such activities include vessel oil spill; ballast water discharge, air and water pollution; anti-fouling pollution; vessel scrapping and waste disposal at sea. Other than maritime pollution, the sea is also facing challenges from climate change and illegal fishing.

Considering the scrutiny, for effective maritime port administration and proper exercise of port state jurisdiction, Bangladesh needs a comprehensive maritime policy. The present legal framework of Bangladesh falls short of effective implementing port state jurisdiction on foreign flagged vessels. There is no ambiguity in conceding that inconsistencies exist between the applicable national and international legal framework. This deficit urges that Bangladesh requires robust national legislation in order to discharge the obligation of port state jurisdiction under international law. After the maritime boundary dispute settlements with India and Myanmar, Bangladesh has garnered the legitimate right and jurisdiction of significant amount of maritime territory in the realm of the Bay of Bengal. Hence, it is high time for Bangladesh to realise the implementation of more structured and systematic exercise of port state jurisdiction.

The writer is a Lecturer of Law, Bangabandhu Sheikh Mujibur Rahman Science and Technology University.

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