§
3-6. What Is A Vessel?
The definition of a "vessel" is important in many different contexts of admiralty and maritime law.
Vessel status is important in determining jurisdiction since acts that occur aboard a vessel will be
presumed, absent unusual circumstances, FN1
to meet the maritime relationship requirement.
Furthermore, under the Admiralty Extension Act, land-based damages are within the jurisdiction if
"caused by a vessel."
FN2
The existence of a vessel also may be necessary for the assertion of a
salvage award, liability for unseaworthiness, or a maritime lien under the general maritime law. The
applicability of several statutes, such as the Jones Act, FN3
Compensation Act, FN4
Shelf Lands Act, FN6
the Longshore and Harbor Workers'
the Limitation of Shipowners' Liability Act, FN5
and the Outer Continental
may depend on whether a vessel is involved.
Fortunately, in the overwhelming majority of cases, the problem of defining a vessel does not arise
because the craft fits the common sense notion of the term as a structure built to transport goods and
passengers over water. Marginal cases occur, however, which pose close and difficult questions. These
cases commonly fall into three categories: (1) structures used for construction or other specialized
functions connected with port, harbor, or shoreside facilities; (2) ships under repair, construction, or
withdrawn from navigation; and (3) specialized structures used in the production of oil and gas on the
outer continental shelf or in inland navigable waters.
Reaching a decision in particular cases is difficult because both the statutory definitions of the term
"vessel" and the general maritime law are rather vague. The general definition of the term "vessel" set out
by Congress is "every description of watercraft or other artificial contrivance used, or capable of being
used, as a means of transportation by water."
the Merchant Marine Act
FN8
FN7
The statutory definitions of vessel that apply to
and the Longshore and Harbor Workers' Compensation Act
FN9
are even less helpful.
The most basic criterion used to decide whether a structure is a vessel is the purpose for which it is
constructed and the business in which it is engaged. FN10
The business or employment of a watercraft
is determinative, rather than its size, form, capacity, or means of propulsion. FN11
On this basis, many
unusual structures are held to be vessels, including barges and other craft without motive power, FN12
rafts, FN13
and "pump-boats" used to pump out barges. FN14
On the other hand, aircraft, helicopters,
and even seaplanes ordinarily are not vessels, since their purpose is to fly through the air, not to navigate
on water. FN15
The term "vessel" in admiralty law is not limited to ships engaged in commerce. FN16
To deal with the seemingly endless variety of different structures and fact situations posing the issue
of "what is a vessel," the courts have elaborated upon the "purpose" test and employ an analysis that is in
essence a balancing judgment based upon the following factors: (1) whether it is designed to be mobile
and capable of transportation across water; (2) whether it is subject to the common perils of the sea; (3)
whether it is designed to be permanently fixed in position; and (4) whether "vessel" status is consistent
with statutory or other policy considerations. FN17
What is a vessel may vary depending on the
particular issue or statute involved. As the Fifth Circuit explained: "We are not convinced that the term
'vessel' for Jones Act purposes, which is subject to liberal construction consistent with the purposes of the
Act, is necessarily a vessel for other purposes as well."
FN18
The "vessel" issue frequently arises with regard to a floating structure or platform that has a
specialized function in a port, harbor, or shipyard. The paradigm case is the floating drydock, which is
used for the repair and construction of boats, ships, and other craft. While in use, such structures are not
in navigation and are more or less permanently fixed to the shore. Based upon the purpose test, they are
held not to be ships or vessels. FN19 In recent years, however, drydocks have been built to be mobile and,
in many instances, they are commonly towed long distances. Accordingly, a drydock that is mobile and
"committed to navigation" may be a vessel even where in mid-voyage, it is temporarily harbored in a
fixed location. FN20
By analogy to the floating dry-dock cases, floating platforms, barges, or rafts used for construction or
repair of piers, docks, bridges, pipelines, and other facilities are not vessels. FN21
A floating platform
secured to a dock by rope used as a stationary construction surface is not a vessel, even though it is
capable of limited movement over water. FN22
been denied vessel status. FN23
A variety of other movable floating structures also have
On the other hand, where the transportation function of such a structure
is more than just incidental, vessel status may be proper. FN24
Another difficult question is whether a "dead ship" that is withdrawn from navigation or devoted to a
land-based use is a vessel. Only if a ship is so changed in function that it has no further navigation
function will it be considered to have lost vessel status. FN25
uses that are still capable of navigation
FN27
FN26
By contrast, ships given over to stationary
and ships temporarily out of navigation for repairs
remain vessels.
Specialized structures used in the exploration and production of oil and gas have produced a great
deal of litigation over vessel status. An important early case, Offshore Co. v. Robison, FN28
held that a
floating submersible oil drilling rig made fast to the ocean floor by "jack-up" (retractable) legs is a vessel
since its inherent characteristic is the ability to be towed from place to place. Since Robison, many
structures designed to be moved on a regular basis have been held to be vessels. A submersible drilling
barge designed to transport drilling equipment to a well site, to submerge for drilling operation, and to
refloat for movement to a new site, is a vessel. FN29
A submersible oil storage facility, such as a round
barge with six oil storage tanks capable of being submerged or raised, is a vessel. FN30
A drilling
tender anchored for extended periods to a fixed offshore platform, is a vessel since it can be used to
transport men and equipment and is moved periodically to avoid rough weather. FN31
On the other hand, a fixed oil and gas drilling and production platform permanently attached to the
ocean floor is not a vessel. FN32
Whether an offshore structure is fixed or movable depends upon the
facts of the particular case. A fixed platform is one whose pilings are driven through the supporting legs
of the structure into the ocean floor. It normally cannot float or navigate. FN33
Where the design of the
structure and its anchorage show that it is fixed to a particular site and is not intended to be moved, it will
not qualify as a vessel. FN34
FNa Professor of International Studies, International Christian University, Tokyo, Visiting Professor of
Law, George Washington University, Dean and Virginia Rusk Professor of Law Emeritus, University of
Georgia.
FN1 In Sohyde Drilling & Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132, 1137, 1982
AMC 2644 (5th Cir.1981), rehearing denied 651 F.2d 776 (5th Cir.1981), the court said that although a
structure may meet "some abstract definition of 'vessel,' this is not necessarily dispositive of the issue of
whether the structure has a substantial relationship to maritime activity," and held that a claim for
damages due to the explosion of a gas well during work-over operations by a drilling barge was not
within admiralty jurisdiction. See also Jiles v. Federal Barge Lines, Inc., 365 F.Supp. 1225 (E.D.La.1973)
and Petrou v. United States, 529 F.Supp. 295, 1984 AMC 911 (D.Md.1981), for similar holdings that the
requisite maritime relationship was lacking.
FN2 See supra §
3-4.
FN3 46 U.S.C. §
688 et seq.
FN4 33 U.S.C. §
901 et seq.
FN5 46 U.S.C. §
181 et seq. See Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co.,
271 U.S. 19, 46 S.Ct. 379, 70 L.Ed. 805 (1926).
FN6 43 U.S.C. §
FN7 1 U.S.C. §
1331 et seq.
3.
FN8 The Merchant Marine Act of 1920, of which the Jones Act is a part, defines vessels as "[a]ll
watercraft and other artificial contrivances of whatever description and at whatever stage of construction,
whether on the stocks or launched, which are used or are capable of being or are intended to be used as a
means of transportation on water." 46 U.S.C. §
801.
The International Regulations for Preventing Collisions at Sea contain a similar statutory definition
of vessels. 33 U.S.C. §
1601(1).
FN9 The Longshoremen's and Harbor Workers' Compensation Act (LHWCA) states, inter alia:
"(t)he term 'vessel' means any vessel upon which or in connection with which any person entitled to
benefits under this chapter suffers injury or death arising out of or in the course of his employment, and
said vessel's owner, owner pro hac vice, agent, operator, charter or bare boat charterer, master, officer, or
crew member." 33 U.S.C. § 902(21).
FN10 The Robert W. Parsons, 191 U.S. 17, 30, 24 S.Ct. 8, 12, 48 L.Ed. 73
(1903).
FN11 Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501 (1887). For example, a Jet
Ski is a vessel. Wahlstrom v. Kawasaki Heavy Industries, Ltd., 4 F.3d 1084, 1994 AMC 13 (2d
Cir.1993); Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1990 AMC 609 (11th Cir.1990).
FN12 Ex Parte Easton, 95 U.S. (5 Otto) 68, 24 L.Ed. 373 (1877); In re Great Lakes Transit Corp. (The
Glenbogie), 63 F.2d 849, 1933 AMC 1019 (6th Cir.1933); Hudson Harbor 79th Street Boat Basin, Inc. v.
Sea Casa, 469 F.Supp. 987, 1979 AMC 2401 (S.D.N.Y.1979) (houseboat).
FN13 Muntz v. A Raft, 15 Fed. 555 (C.C.E.D.La.1883); Seabrook v. Raft of R.R. Cross-Ties, 40 Fed. 596
(D.S.C.1889).
FN14 Charles Barnes Co. v. One Dredge Boat, 169 Fed. 895 (E.D.Ky.1909).
Wendt v. General
Dynamics Corp., 1979 AMC 2897 (D.N.J.1978) held that a large navigation buoy designed to be towed
from place to place was a vessel. In Dardar v. Louisiana State Dep't of Highways, 447 F.2d 952, 1971
AMC 2381 (5th Cir.1971), rehearing denied 405 U.S. 1048, 92 S.Ct. 1308, 31 L.Ed.2d 591 (1972), a car
shuttle ferry permanently anchored to shore was a vessel.
FN15 Barger v. Petroleum Helicopters, Inc., 692 F.2d 337, 1983 AMC 2854
(5th Cir.1982), rehearing
denied 698 F.2d 1216 (5th Cir.1983); Smith v. Pan Air Corp., 684 F.2d 1102, 1983 AMC 2836 (5th
Cir.1982); Hebert v. Air Logistics, Inc., 720 F.2d 853, 1984 AMC 1512 (5th Cir.1983). Reeves v.
Offshore Logistics, Inc., 720 F.2d 835, 1984 AMC 2552 (5th Cir.1983). A seaplane that is navigating on
the water may be a vessel, however. See Hark v. Antilles Airboats, Inc., 355 F.Supp. 683, 1973 AMC 895
(D.V.I.1973) (dictum).
FN16 St. Hilaire Moye v. Henderson, 496 F.2d 973, 1974 AMC 2661 (8th Cir.1974).
Note, however, that a partially constructed ship can be considered a "vessel" for purposes of
admiralty tort jurisdiction, as it was in Bunge Corp. v. Freeport Marine Repair, Inc., 240 F.3d 919, 2001
AMC 1367 (11th Cir.2001). In this case, the court also went on to hold that the Louisiana Rule, where a
moving ship that strikes and damages a stationary object is presumed to be at fault, applied to the case at
hand when the ship broke loose from her moorings in the waterway during the hurricane and struck the
grain loading facility. The locality test was satisfied in that it occurred on navigable waters and the nexus
test was satisfied in that there was disruption of commercial activity through striking. Furthermore, the
construction and mooring of the ship had a substantial relationship to traditional maritime activity.
FN17 See e.g., Brunet v. Boh Bros. Constr. Co., 715 F.2d 196 (5th Cir.1983) (Jones Act); McDermott,
Inc. v. Boudreaux, 679 F.2d 452 (5th Cir.1982) (Jones Act); Estate of Wenzel v. Seaward Marine
Services, Inc., 709 F.2d 1326 (9th Cir.1983) (Jones Act); Burks v. American River Transp. Co., 679 F.2d
69, 1983 AMC 2208 (5th Cir.1982) (§
905(b) of the Longshore Act); Evansville & Bowling Green
Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, 46 S.Ct. 379, 70 L.Ed. 805 (1926) (Limitation of
Liability Act); Hayford v. Doussony, 32 F.2d 605 (5th Cir.1929), affirmed 42 F.2d 439 (5th Cir.1930)
(Lien Act). For a comprehensive review of the "vessels" cases, see Moore's Federal Practice, # .215 (2d
ed. 1983).
FN18 Sohyde Drilling and Marine Co. v. Coastal States Gas Producing Co., 644 F.2d 1132 (5th Cir.1981),
rehearing denied 651 F.2d 776 (5th Cir.1981); see also United States v. Boyden, 696 F.2d 685, 1983
AMC 2404 (9th Cir.1983). In most cases, however, the general maritime law definition of "vessel" will
be considered identical to a statutory definition. See Wendt v. General Dynamics Corp., 1979 AMC 2897
(D.N.J.1978) and Nevel v. Todd Shipyards Corp., 1978 AMC 2230 (N.D.Cal.1978).
FN19 Cope v. Vallette Dry-Dock Co., 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501 (1887); De Martino v.
Bethlehem Steel Co., 164 F.2d 177 (1st Cir.1947); Keller v. Dravo Corp., 441 F.2d 1239, 1971 AMC
1797 (5th Cir.1971); Atkins v. Greenville Shipbuilding Corp., 411 F.2d 279 (5th Cir.1969); Nevel v.
Todd Shipyards Corp., 1978 AMC 2230 (N.D.Cal.1978).
FN20 J.M.L. Trading Corp. v. Marine Salvage Corp., 501 F.Supp. 323
(E.D.N.Y.1980); see also United
States v. Moran Towing & Transp. Co., 374 F.2d 656, 1967 AMC 1733 (4th Cir.1967), judgment vacated
on other grounds 389 U.S. 575, 88 S.Ct. 689, 19 L.Ed.2d 775 (1968), on remand 302 F.Supp. 600
(D.Md.1969).
FN21 Kathriner v. UNISEA, Inc., 975 F.2d 657, 1994 AMC 2787 (9th Cir.1992) (floating fish processing
plant); Bernard v. Binnings Constr. Co., Inc., 741 F.2d 824, 1985 AMC 784 (5th Cir.1984). See also
Cook v. Belden Concrete Prods., Inc., 472 F.2d 999, 1973 AMC 285 (5th Cir.1973), rehearing denied 472
F.2d 1405 (5th Cir.1973) (floating construction platform); Leonard v. Exxon Corp., 581 F.2d 522, 1979
AMC 2011 (5th Cir.1978), rehearing denied 586 F.2d 842 (5th Cir.1978) (a construction platform
consisting of four flat-deck barges was neither designed for or in navigation at the time of the accident);
Powers v. Bethlehem Steel Corp., 477 F.2d 643, 1973 AMC 2023 (1st Cir.1973), rehearing denied 483
F.2d 963 (1st Cir.1973) (floating raft used for repair of pier); Watkins v. Pentzien, Inc., 660 F.2d 604,
1982 AMC 2840 (5th Cir.1981) (per curiam) (pipeline construction platform); Lloyd v. Crestores, Inc.,
1982 AMC 1697 (E.D.Pa.1981) (floating crane barge used to discharge cargo).
FN22 Cook v. Belden Concrete Prods., Inc., 472 F.2d 999, 1973 AMC 285
(5th Cir.1973), rehearing
denied 472 F.2d 1405 (5th Cir.1973).
FN23 Cookmeyer v. Louisiana Dep't of Highways, 309 F.Supp. 881, 1970 AMC 584 (E.D.La.1970),
judgment affirmed 433 F.2d 386 (5th Cir.1970) (pontoon bridge); Mayfield v. Wall Shipyard, Inc., 510
F.Supp. 605 (E.D.La.1981) (steel pontoon used for work in shipyard); Smith v. Massman Constr. Co.,
607 F.2d 87, 1980 AMC 1349 (5th Cir.1979) (per curiam) (caisson constructed as part of bridge
foundation); Buna v. Pacific Far East Line, 441 F.Supp. 1360, 1978 AMC 1878 (N.D.Cal.1977) (paint
float); Russell v. City Ice & Fuel Co. of Point Pleasant, 539 F.2d 1318, 1976 AMC 295 (4th Cir.1976)
(fuel flat). A riverboat casino is not a vessel for purposes of admiralty tort jurisdiction. King v. President
Riverboat Casino, 894 F.Supp. 1008 (S.D.Miss.1995). In all of the foregoing cases the transportation
function was found to be incidental and not significant. The claims involved also arose when the
structures were stationary and not in navigation.
FN24 Brunet v. Boh Bros. Constr. Co., 715 F.2d 196, 1984 AMC 1264 (5th Cir.1983).
FN25 Ross v. Moak, 388 F.Supp. 461 (M.D.La.1975) (boat store); Frank B. Hall & Co. v. S.S. Seafreeze
Atlantic, 423 F.Supp. 1205 (S.D.N.Y.1976) ( "mothballed" vessel); Jiles v. Federal Barge Lines, Inc., 365
F.Supp. 1225 (E.D.La.1973) (steamboat moored to shore with boilers and engines removed). But see M/V
Marifax v. McCrory, 391 F.2d 909 (5th Cir.1968) (ship which had been in "moth balls" for 15 years,
which is put in condition by repairs for use in transporting sand is a vessel subject to a maritime lien).
FN26 Luna v. Star of India, 356 F.Supp. 59, 1973 AMC 1597
(S.D.Cal.1973) (floating museum);
McCarthy v. The Bark Peking, 716 F.2d 130, 1984 AMC 1 (2d Cir.1983), rehearing denied 466 U.S. 994,
104 S.Ct. 2378, 80 L.Ed.2d 850 (1984) (former sailing ship used as museum).
FN27 A-1 Indus. v. Barge Rig # 2, 1979 AMC 1486 (E.D.La.1979) (oil drilling barge at wharf for repairs
not a "dead" ship); Farrell Ocean Servs., Inc. v. United States, 681 F.2d 91, 1983 AMC 1077 (1st
Cir.1982) (vessels being transported as cargo do not lose status as vessels).
Contracts for dry storage have been held to be within admiralty jurisdiction because the vessel was
not withdrawn from navigation based on its pattern of use. See American Eastern Dev. Corp. v.
Everglades Marina, Inc., 608 F.2d 123, 1980 AMC 2011 (5th Cir.1979). A floating hull was enough of a
completed ship to be a vessel whether based on tort or contract in a possessory suit. Offshore Express Inc.
v. Bergeron Boats, Inc., 1978 AMC 1504 (E.D.La.1977). A partially completed barge still under
construction, however, was not a vessel for contract or warranty of seaworthiness. See Hollister v. Luke
Constr. Co., 517 F.2d 920, 1976 AMC 1763 (5th Cir.1975).
To be under a duty of seaworthiness, the craft must qualify as a "vessel in navigation"; however, the
Fifth Circuit has explicitly held that the navigable waters or locality test is not determinative. See Delome
v. Union Barge Line Co., 444 F.2d 225, 1971 AMC 1369 (5th Cir.1971) (even a drydocked ship is subject
to the warranty if it is still "in navigation," as it was here due to minor nature of repairs).
Where substantial repair work is taking place, however, no duty as to a vessel's seaworthiness is
owed. See Watz v. Zapata Off-Shore Co., 431 F.2d 100, 1970 AMC 2307 (5th Cir.1970), appeal after
remand 500 F.2d 628 (5th Cir.1974). See also Hodges v. S.S. Tillie Lykes, 512 F.2d 1279, 1975 AMC
2589 (5th Cir.1975); Lang v. United States, 1974 AMC 2362 (D.Md.1972); Johnson v. Oil Transp. Co.,
440 F.2d 109, 1971 AMC 1038 (5th Cir.1971), rehearing denied 445 F.2d 1402 (5th Cir.1971); Moye v.
Sioux City & New Orleans Barge Lines, Inc., 402 F.2d 238 (5th Cir.1968), rehearing denied 395 U.S. 987,
89 S.Ct. 2141, 23 L.Ed.2d 777 (1969).
FN28 266 F.2d 769 (5th Cir.1959). For other submersible drilling barge cases see Daughdrill v. Diamond
M. Drilling Co., 447 F.2d 781, 1972 AMC 1103 (5th Cir.1971); Neill v. Diamond M. Drilling Co., 426
F.2d 487 (5th Cir.1970); Producers Drilling Co. v. Gray, 361 F.2d 432, 1966 AMC 1260 (5th Cir.1966);
Harney v. William M. Moore Bldg. Corp., 359 F.2d 649 (2d Cir.1966); Clary v. Ocean Drilling and
Exploration Co., 429 F.Supp. 905 (W.D.La.1977), judgment affirmed 609 F.2d 1120, 1980 AMC 1160
(5th Cir.1980); McNeese v. An-Son Corp., 334 F.Supp. 290 (S.D.Miss.1971); McCarty v. Service
Contracting, Inc., 317 F.Supp. 629, 1971 AMC 90 (E.D.La.1970); Robichaux v. Kerr McGee Oil Indus.,
Inc., 317 F.Supp. 587, 1971 AMC 1202 (W.D.La.1970); Rogers v. Gracey-Hellums Corp., 331 F.Supp.
1287, 1971 AMC 955 (E.D.La.1970), judgment affirmed 442 F.2d 1196 (5th Cir.1971); Hebert v.
California Oil Co., 280 F.Supp. 754 (W.D.La.1967); Ledet v. United States Oil of La., Inc., 237 F.Supp.
183 (E.D.La.1964); Oliver v. Ocean Drilling & Exploration Co., 222 F.Supp. 843 (W.D.La.1963);
Guilbeau v. Falcon Seaboard Drilling Co., 215 F.Supp. 909 (E.D.La.1963).
FN29 Producers Drilling Co. v. Gray, 361 F.2d 432, 1966 AMC 1260 (5th Cir.1966).
FN30 Hicks v. Ocean Drilling and Exploration Co., 512 F.2d 817, 1975 AMC 1378 (5th Cir.1975).
FN31 Parks v. Dowell Div. of Dow Chem. Corp., 712 F.2d 154 (5th Cir.1983). The Fifth Circuit has held
a variety of special purpose marine structures to be vessels. For a discussion and summary of this
jurisprudence, see Manuel v. P.A.W. Drilling, 135 F.3d 344, 1998 AMC 1390 (5th Cir.1998).
FN32 Olsen v. Shell Oil Co., 708 F.2d 976, 1984 AMC 580 (5th Cir.1983), rehearing denied 717 F.2d
1399 (5th Cir.1983); Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1980 AMC 2625 (5th Cir.1980);
Myrick v. Teledyne Movible Offshore, Inc., 516 F.Supp. 602 (S.D.Tex.1981). See also Hemba v.
Freeport McMoran Energy Partners, Ltd., 811 F.2d 276, 1988 AMC 304 (5th Cir.1987).
FN33 See e.g., Rohde v. Southeastern Drilling Co., Inc., 667 F.2d 1215
(5th Cir.1982). See also
MacDonald v. Santa Fe Int'l. Corp., 1981 AMC 536 (S.D.Tex.1980).
FN34 See e.g., Blanchard v. Engine & Gas Compressor Serv., 575 F.2d 1140
(5th Cir.1978) (gas
compressor station fixed to ocean bottom). See also Hemba v. Freeport McMoran Energy Partners, Ltd.,
811 F.2d 276, 1988 AMC 304 (5th Cir.1987). See also Richendollar v. Diamond M Drilling Co., Inc., 819
F.2d 124, 1987 AMC 2613 (5th Cir.1987), rehearing denied 484 U.S. 1021, 108 S.Ct. 736, 98 L.Ed.2d
684 (1988) (a §
§
905(b) case).
2-21. Ship Registration And Nationality
The fundamental basis for the rights of freedom of the seas and navigation under international law is
the concept that a vessel has a nationality which has been conferred upon it by a state. FN1
without nationality may be boarded by any state, even on the high seas, FN2
Ships
and any state may assert
jurisdiction over a stateless vessel. FN3
The flag state is obligated to prescribe and enforce laws to protect the passengers and crew aboard a
ship flying its flag and to ensure that good order is maintained. The flag state also must exercise effective
authority and control over the ship in administrative, technical, and labor matters. FN4 The LOS
Convention specifies that flag state prescriptive and enforcement jurisdiction extends to the construction,
equipment, and seaworthiness of ships; the manning of ships, labor conditions, and the training of crews;
and the use of signals, communications, and other measures to prevent collisions. FN5
Every nation (including landlocked states) has the right to authorize ships to sail under its flag, FN6
to decide the conditions for the grant of its nationality to ships, and to prescribe the rules governing them.
FN7
No state may grant its nationality to a ship that is already registered in another state, except
pursuant to a transfer of registration. FN8
A state may properly register a ship and authorize it to fly the
state's flag only if there is a genuine link between the state and the ship. FN9
The purpose of this
requirement is to ensure that states exercise effective control over vessels flying their flag. FN10
Controversy over the genuine link requirement has centered on so-called "flags of convenience" or
"open registry" states. These are various nations that allow ownership and control of its vessels by
non-citizens, maintain easy access to registry, levy low taxes and registry fees, and freely permit manning
of vessels by non-nationals. In 1986, after intensive negotiations, a United Nations Convention on
Conditions for Registration of Ships
FN11
was concluded which tightens the conditions under which
the open registry countries may register ships. The Convention requires states to establish "competent and
adequate" maritime administrations to ensure compliance with international rules and standards
concerning "the safety of ships and persons on board and the prevention of pollution of the marine
environment." States must also provide for the periodic survey of ships flying their flag and require the
carrying of appropriate documentation. FN12
Under the United States Vessel Documentation Act, any vessel of at least five net tons not registered
under the laws of a foreign country is eligible for documentation if it is owned by (1) an individual who is
a citizen of the United States; (2) an association that is capable of holding title to the vessel if all of the
members are citizens; (3) a partnership whose general partners are citizens and whose controlling interest
is owned by citizens; (4) a corporation whose chief executive officer and board chairman are citizens and
no more of its directors are non-citizens than a minority of the number necessary to constitute a quorum;
or (5) government (state or federal). FN13
A certificate of documentation is conclusive evidence of
nationality for international purposes (but not in a proceeding conducted in the United States). FN14
A vessel must be documented in a port of documentation designated by the Secretary of Commerce.
FN15
The port of documentation is deemed the vessel's home port. FN16
On application for
documentation the owner of an eligible vessel is issued a "certificate of documentation" which is
endorsed to specify the trades in which the vessel may engage. FN17
These trades include, first,
"registry," which limits a vessel to foreign trade or trade with Guam, American Samoa, Wake, Midway,
and Kingman Reef. FN18
Second, a coastwise license may be issued if the vessel was built in the
United States (or if foreign built, was lawfully condemned as prize or forfeited under U.S. law) and meets
other eligibility requirements. FN19
Third, a Great Lakes license may be issued enabling the vessel to
be employed on the Great Lakes and their tributary and connecting waters, FN20
license may be issued to qualify the vessel for use in the fisheries. FN21
and fourth a fishing
Fifth, a pleasure vessel license
may be issued if the vessel is to be operated for pleasure only. FN22
All vessels documented by the United States must be placed under the command of a United States
citizen. FN23
All officers and 75 percent of the crew of a U.S. documented vessel must be citizens of
the United States. FN24
American laws. FN25
In addition, U.S. documented vessels are subject to extensive regulation under
In contrast, the federal courts have held that the National Labor Relations Act
does not apply to maritime operations of foreign flag ships employing alien seamen. FN26
FNa Professor of International Studies, International Christian University, Tokyo, Visiting Professor of
Law, George Washington University, Dean and Virginia Rusk Professor of Law Emeritus, University of
Georgia.
FN1 See the S.S. Lotus, P.C.I.J., Series A, No. 10 at 25 (1927). A ship navigating the seas may sail only
under the flag of the nation in which it is registered and must carry documents certifying its registration.
Some consider the term "nationality" misleading as applied to vessels. See [1951] 1 Y.B.Int'l.L.Comm'n.
328-329 for the views of the International Law Commission on this point. Nevertheless nationality
continues to be the term used in referring to the relationship between a ship and its flag state.
Ship nationality is conferred upon vessels, not owners; see Southeast Shipyard Association v. United
States, 979 F.2d 1541, 1993 AMC 871 (D.C.Cir.1992). In McCulloch v. Sociedad Nacional de Marineros
de Honduras, 372 U.S. 10, 83 S.Ct. 671, 9 L.Ed.2d 547 (1963), the United States Supreme Court
recognized "the well-established rule of international law that the law of the flag ordinarily governs the
internal affairs of a ship."
Id. at 21, 83 S.Ct. at 677. In Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921,
97 L.Ed. 1254 (1953), the Supreme Court recognized the principle that each sovereign state has the right
to define the conditions for granting a ship nationality.
FN2 LOS Convention, Art. 110(1)(d).
FN3 Id. See Anderson, Jurisdiction over Stateless Vessels on the High Seas, 13 J.Mar.L. & Comm. 323
(1982).
FN4 Restatement (Revised) of the Foreign Relations Law of the United States, §
502 (1987).
FN5 LOS Convention, Art. 94.
FN6 LOS Convention, Art. 90. The United Nations and other international organizations may also
authorize ships to sail under their flags. LOS Convention, Art. 93.
FN7 Convention on the High Seas, Art. 6(1); LOS Convention, Art. 91(1).
FN8 Convention on the High Seas, Art. 6; LOS Convention, Art. 92(1).
FN9 Convention on the High Seas, Art. 5(1); LOS Convention, Art. 91(1).
The "genuine link" requirement originated in the holding of the International Court of Justice in the
Nottebohm Case. (Liechtenstein v. Guatemala), [1955] I.C.J. 4.
FN10 In the Nottebohm Case (Liechtenstein v. Guatemala), [1955] I.C.J. 4, the International Court of
Justice held that because of the absence of a "genuine link" between a person claiming Liechtenstein
nationality and Liechtenstein, Guatemala did not have to recognize the claimed Liechtenstein nationality
of the person. This was the source of the "genuine link" idea which was adopted for ships by the 1958
Convention on the High Seas, Art. 5(1).
FN11 U.N.Doc.TD/RS/Conf/23 (March 13, 1986).
For analysis, see H. Edwin Anderson III, The Nationality of Ships and Flags of Convenience:
Economics, Politics and Alternatives, 21 Tul.Mar.L.J. 139 (1996);Julie A. Perkins, Ship Registers: An
International Update, 22 Tul.Mar.L.J. 197 (2002).
FN12 Id., Art. 5.
In 1986, to allow U.S. naval protection of Kuwaiti ships in the Persian Gulf, the United States placed
eleven Kuwaiti tankers under the American flag, to be escorted by U.S. naval forces. For an analysis of
the legality of this practice, see Rudiger Wolfrum, Reflagging and Escort Operation in the Persian Gulf:
An International Law Perspective, 29 Va.J. Int'l L. 387 (1989).
For differing views on the effectiveness of the Ship Registration Convention and the propriety of the
use of flags of convenience, see Moira L. McConnell, Business as Usual: An Evaluation of the 1986
United Nations Convention on Conditions for Registration of Ships, 18 J. of Mar.L. and Com. 435 (1987)
and David F. Matlin, Reevaluating the Status of Flags of Convenience Under International Law, 23
Vand.J. of Trans.L. 1017 (1991).
FN13 46 U.S.C. §
12102. If a vessel is owned by an association, corporation, or partnership, to obtain a
coastwise license, 75 percent of the interest of the entity must be owned by U.S. citizens. 46 U.S.C. §
802.
FN14 46 U.S.C. §
12104.
FN15 46 U.S.C. §
12113.
FN16 46 U.S.C. §
12114.
FN17 46 U.S.C. §
12103.
FN18 46 U.S.C. §
12105.
FN19 46 U.S.C. §
12106.
FN20 46 U.S.C. §
12107.
FN21 46 U.S.C. §
12109. A U.S. Certificate of Documentation and Fishery Endorsement issued by the
Coast Guard is conclusive evidence that the vessel is qualified to be employed in fishing. Myers v.
American Triumph F/V, 260 F.3d 1067, 2001 AMC 2400 (9th Cir.2001).
The Anti-Reflagging Act, 46 U.S.C. §
12108, enacted in 1987, requires fish processing and tender
vessels to obtain fishery endorsements before operating in the U.S. Exclusive Economic Zone. A savings
clause exempts vessels built or rebuilt prior to July 28, 1987. See Southeast Shipyard Association v.
United States, 979 F.2d 1541, 1993 AMC 871 (D.C.Cir.1992).
FN22 46 U.S.C. §
12109.
FN23 46 U.S.C. §
12110(d).
FN24 46 U.S.C. §
1132. If a vessel has received a construction or operating subsidy under U.S. laws,
the entire crew must be citizens. Id.
FN25 This governmental regulation is considered infra §
10-4.
FN26 McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21, 83 S.Ct. 671, 677, 9
L.Ed.2d 547 (1963).