Dominican Maritime Law project
Proyecto de Ley de Comercio Maritimo Dominicano
The purpose of this paper is to give my reflection on the sections of this law affecting the operational aspects, specifically title I to IV
Reading the concept law three main issues are raising questions;
The first question is, why the execution of a commercial law will be brought under the responsibility of the ministry of defense?
The second question is, why nowhere reference has been made to existing international regulations, except for the introduction?
The third question, strongly related to the second question, is, why there are so many open ends while reference to existing international regulations would dramatically increase the quality of this law?
Ad 1) The complete execution of the law is delegated to the Armada which is under the responsibility of the Ministry of Defense. Since this law is affecting commercial shipping, shouldn’t it be more logic to have the execution of the law under the responsibility of the Ministerio de Industria, Comercio y MiPYMES? Of course there will be presently be little maritime experience amongst the staff of this ministry but I can imagine that different ministries can share staff and herewith experience. The knowledge of commercial shipping within the Armada most likely will be challenged as well.
Ad 2) The Dominican Republic is member of the IMO since 1953 and herewith endorsed Safety of Life At Sea (SOLAS) as well as the International Convention on Tonnage Measurement on Ships of 1969. The Dominican Republic is member of the International Labour Organization (ILO) and has herewith endorsed the Maritime Labour Convention (MLC).
The law, in its definitions and in various paragraphs is referring to Gross Register Ton (GRT) and Net Register Ton (NRT). Within the IMO it has been agreed that vessels built after 18 July 1982 will be measured in Gross Ton (GT) and Net Ton (NT), which is different from Gross Register Ton and Net Register Ton. In contrary to what is mentioned in the definitions, GRT as well as GT both are used in the law.
In general, vessels over 500GT are being constructed and maintained to Classification Society regulations standards, which involve the construction, the materials and equipment used, watertight integrity, stability and such. All safety related issues are being determined by the Flag State which is the country where the vessel is registered.
The IMO have made regulations for the safety of vessels, described under SOLAS, which is internationally applicable to vessels of 500 GT and over, and which have the capacity to carry more than 12 passengers. SOLAS is being enforced by the Flag State and regularly inspected by Port State Control (PSC) in foreign countries. A vessel not complying to SOLAS will be detained in a foreign port.
The law makes difference between vessels of 500 GRT (not GT) and more and smaller vessels. Despite not mentioned in the law, a vessel of less than 500 GT with capacity for more than 12 passengers must comply to SOLAS when trading international. The law, by times is mentioning more than 11 passengers and more than 12 passengers, which can be considered as confusing.
The law mentions that the Armada will determine (?) to which regulations a vessel must comply to in order to be registered under Dominican Flag, no reference to SOLAS is made.
According to the law, the Armada will issue two certificates, the Certificate of Registration (Matricula) and Patente de Navigacion. Normally a Flag State issues, amongst others, the following certificates; Safety Construction, Safety Equipment, Safety Radio, Ship Radio Station License, Tonnage Certificate.
In case of a new built vessel, according to the law, the building yard and the naval architect need to be approved by the Armada. Drawing approval is not mentioned. Normal practice and international accepted is that a vessel is being built under a Classification Society its approval. After completion of the vessel the Classification Society issues a Certificate of Class (amongst others) which means that the vessel has been constructed according to the standards of the Classification Society.
A vessel is considered to be completed after construction and seaworthy when the Classification Certificate has been issued. The law mentions the yard certificate as indication of completion, which has no international status.
As the law is written now, it is uncertain to a ship owner to which regulations his vessel must comply.
As mentioned earlier, the Dominican Republic is a member of the ILO. Crew working and rest hours, living and working circumstances, minimum age and such are regulated by the ILO within the MLC. The law chooses to refer to the Codigo de Trabajo (article 207) in relation to working circumstances related issues which are not the international standard and will not be accepted in international traffic.
The certification requirements for crew are internationally regulated within the STCW 95 which stands for Standards of Training, Certification and Watchkeeping, which was adopted in 1978 by, again, the IMO. The law states that the Armada will set the standards for certification of crew and captain, no reference is made to the STCW 95.
Besides the above mentioned, there are several regulations which can be subject to confusion or being very impractical.
Article 211, a vessel needs to use tugboats when it is above 400 GRT (Not GT) but needs a pilot when it is more than 300 GT (Not GRT) (article 209) while these are still below GRT 500 and considered as a small vessel.
Article 205 states that Radio Certificates are issued by the “autoridades competentes” but not mentioning who these are.
Article 198 states that the first officer “le corresponde distribuir el trabajo entre él y los demás oficiales, así como dirigir las tareas de todo el personal a bordo” But articulo 203 states “los oficiales de máquinas estarán a las órdenes de jefe de máquinas”
According to Article 78, the captain has to get approval from the Armada prior to every departure from a port.
Article 45, listing the required documents for obtaining the Patente de Navigacion. Under d) it states “Cualquier otro requisito que establezca la Armada de República Dominicana” A law should be clear and not leaving open ends, at least if the aim is to have vessels registered under the Dominican Flag
Article 37 mentions “los documentos técnicos de seguridad” but these are nowhere specified so no one knows what these are.
Article 30 states the requirements for “Solicitud del registro provisional” It might be advisable to add to have a vessel inspected prior to registration to see if it complies to the Flag its requirements.
A vessel can be registered as the property of a natural person, article 25 is describing “Copropiedad de una nave marítima” which cannot be applied in case of a natural person.
Article 9 indicates that a vessel can only be permanently registered when it is in a Dominican port, this might conflict with the international character of the maritime world and will be seen as a handicap by shipowners.
Article 5 states that a ship’s name should be “único, no puede coincidir ni literal ni fonéticamente con el de otra naveexistente o en construcción” With a world fleet of over 62,000 vessels in 2020 it will be a serious challenge to find a name.
A law, in my opinion, should be a clear reference. Despite all Convenios Internacionales mentioned in the law, the law makers apparently decided to ignore these. It is concerning that the law, as per article 1 “tiene por objeto regular, dentro del territorio de la República Dominicana, los hechos y relaciones jurídicas relativas a las naves marítimas nacionales y extranjeras” and is therefore affecting foreign vessel which should only need comply to international regulations regarding safety, construction and labour matters, not to local laws.
A lot of work has been done over the past years to get this law this far but the input from a wider expertise could have been helpful to have it improved to a higher standard. The present omissions as described in this paper will not contribute to attracting ship owners to have a vessel registered under the flag of the Dominican Republic.
Hans de Koning MBA AFNI
Flag state surveyor