The Law of the Ship‟s Flag in Legal Relations of Carriage of Goods by Sea
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Abstract
The law of the ship’s flag (lex flagi) is one of the well-known conflict rules. This specific conflict principle is applicable only to maritime legal relations, i.e. relations the element of which is a ship. The principle contains a rigid connecting factor, which imposes the obligation to apply the law of the state with whose flag the ship flies. International public law reveals the legal concept of the law of the flag. The benefits and applicability of the concept are assessed from the point of view of the private international law.
Article deals with such lex flagi realization problems as flags of convenience, two flags on board etc. The author closely analyses the function of connecting legal relation and state performed under the conflict principle in order to identify applicable law. The accomplished analysis leads to a conclusion that the law of the flag coincides to a certain degree with another conflict rule, which connecting factor refers to the nationality of the ship’s owner or manager. Therefore the article discusses a possibility to substitute lex flagi by this particular conflict rule.
The discourse is continued on the importance of the principle in question for contractual relations of carriage of goods by sea. Separate evaluations are made with regard to contracts of carriage of goods by sea and to voyage charter-party contracts. The conclusions refer to a trend of various countries to refuse to provide the principle as rigid conflict rule for carriage of goods by sea contracts.
Nonetheless, the law of the flag is not completely inappropriate. It may be considered to be one of indicators of a close connection between the contract and the state when realizing another flexible conflict rule - the law of the closest connection. The analysis presented in the article facilitates a better understanding of the nature of the lex flagi principle and its function, which enables an appropriate application of the principle within the flexible context of conflict rules.
Article deals with such lex flagi realization problems as flags of convenience, two flags on board etc. The author closely analyses the function of connecting legal relation and state performed under the conflict principle in order to identify applicable law. The accomplished analysis leads to a conclusion that the law of the flag coincides to a certain degree with another conflict rule, which connecting factor refers to the nationality of the ship’s owner or manager. Therefore the article discusses a possibility to substitute lex flagi by this particular conflict rule.
The discourse is continued on the importance of the principle in question for contractual relations of carriage of goods by sea. Separate evaluations are made with regard to contracts of carriage of goods by sea and to voyage charter-party contracts. The conclusions refer to a trend of various countries to refuse to provide the principle as rigid conflict rule for carriage of goods by sea contracts.
Nonetheless, the law of the flag is not completely inappropriate. It may be considered to be one of indicators of a close connection between the contract and the state when realizing another flexible conflict rule - the law of the closest connection. The analysis presented in the article facilitates a better understanding of the nature of the lex flagi principle and its function, which enables an appropriate application of the principle within the flexible context of conflict rules.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
