Valid passengers

A review of the latest developments in maritime law in Latvia by Gundars Cers of Riga-based law firm Grunte & Cers

AFTER Latvia regained its independence, the Latvian legal regulation in maritime law was incorporated into one document – The Maritime Code. The code was initially adopted by the government in the form of regulations in 1994, but in 2003 was adopted by the parliament in the form of law. Just before that, in 2002, the parliament adopted the Maritime Administration and Marine Safety law. Maritime law issues are also governed in related legal acts, for example, by the law on pollution, transport law, fishery law.

Since 1993 Latvia has been a member of the International Maritime Organization. Latvia has also signed and ratified several international conventions on maritime law. Since its accession to the European Union, the signing of international conventions has became more topical, inter alia, at the beginning of 2004 the UN Convention of the Law of the Sea, 1982, which in principle is considered as a comprehensive codification of the public maritime law, finally came into force in Latvia.

Although Latvia was not a full member of this convention until the beginning of this year, the provisions of the convention were applied as common law and incorporated into national law. For example, pursuant to the State Border law of the Republic of Latvia, the breadth of territorial sea is 12 nautical miles as also determined by the Convention of the Law of the Sea. Likewise, the Law on the Continental Shelf and the Economic Zone of the Republic of Latvia governs the legal regime of the economic zone and the continental shelf observing exactly the norms of the above convention. In respect to the delimitation of the territorial sea, Latvia based its position fully on the norms of the Convention of the Law of the Sea.

There are not many court cases concerning maritime law. Those that do tend to involve the arrest of ships or cargo. Nevertheless there is one interesting Constitutional court case worth mentioning.

Recently, the Constitutional court reviewed a case on the compatibility of the Administrative Violation Code with FAL Convention on Facilitation of International Maritime Traffic, signed in London on 9 April, 1965. The case concerned the imposing of penalties on the sea transport carrier, i.e. owner of the ship, due to the lack of valid traveling documents of its passenger.

The penalty was imposed upon the owner of the Baltic Kristina, which carried to Latvia a citizen of the Kingdom of Sweden without a document valid for traveling. The Standard 3.15 of FAL Convention on Facilitation of International Maritime Traffic that has been in force in Latvia since 21 March 1998, provides that public authorities shall not impose any penalty upon shipowners in the event that any control document in possession of a passenger is found by public authorities to be inadequate, or if, for that reason, the passenger is found to be inadmissible to the state. On the other hand, the Latvian Administrative Violation Code determines that the penalty shall be imposed (the contested clause).

The court considered the fact that Latvia has not informed the secretary-general on any other practice that would differ from that indicated by Standard 3.15. However, following Article VIII of the Convention, any contracting government that finds it impracticable to comply with any standard by bringing its own formalities, documentary requirements or procedures into full accord with it, or which deems it necessary for special reasons to adopt formalities, documentary requirements or procedures differing from that standard, shall so inform the secretary-general and notify him of the differences between its own practice and such standard.

The court came to a conclusion that the contested clause does not conform to Standard 3.15 of the convention, as it imposes liability for activities, which runs counter to Standard 3.15 of the convention and Latvia has not informed on such a difference from its own practice. Furthermore, the Court stated that the contested clause also does not conform to the Council Directive (EC) 2001/51, which has become applicable upon accession of Latvia to the EU.

Following Article 4 of the directive, member states shall take the necessary measures to ensure that the penalties applicable to carriers under the provisions of Article 26(2) and (3) of the Schengen Convention are dissuasive, effective and proportionate. Article 26 (2) of the Schengen Convention provides that the contracting parties shall impose penalties on carriers, which transport aliens who do not possess the necessary travel documents by air or sea from a third state to EU territory. The contested clause covers carrying of any persons and is, therefore, inconsistent also with the directive.

According to Article 307 of the EC Treaty, the rights and obligations arising from agreements concluded between one or more member states on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty. However, pursuant to ECJ judgment in Commission v Italy in relations with other member states, EC legal acts shall be applied. In addition, if a member state establishes non-compliance of the international law obligations with EC legal acts, it shall take all the necessary measures to remove the non-compliance.

The constitutional court resolved by its award that in the time period from the adoption of the contested clause until 1 May 2004 (the day when Latvia acceded to the European Union), the contested clause did not conform to Standard 3.15 in respect of liability of the carriers from the contracting states of the convention.

In the time period after 1 May 2004, the contested clause does not conform to Standard 3.15 with regard to the setting of liability to the carriers which are the contracting states of the convention, but non - European Union, with the condition that Latvia does not inform on a different practice.

It should be added that the court did not consider the fact that Article 26 (2) of the Schengen convention covers passengers without any travelling documents, but in its turn, the FAL convention – passengers without a valid travelling document.

Shipowners from countries that are members of the FAL Convention but not member states of the European Union should not be fined upon entrance in Latvia for carrying passengers without a valid travelling document. If a ship navigates under an EU member state flag, such shipowners, before entering Latvia, should pay close attention to the validity of the travelling document of its passenger in the line of the requirements of the Schengen Convention.