Contact — Penelope Janu

Those following the Legal Beagle columns I post here ( I write these for the fabulous Romance Writers of Australia magazine, HeartsTalk), will know they aren’t written as legal advice, but tips that might be useful to writers dealing with similar issues. Because legal issues come up all the time! Here is an excerpt of an article I recently wrote on the law of the sea:

Some of the principles on the law of the sea are centuries old and will, I hope, be of interest to both contemporary and historical romance authors.

The world currently has a commercial fleet of over 90 000 vessels. Greece is the largest ship owning country, followed by Japan, China, Germany and Singapore. This could explain why decades of Mills & Boon titles have featured Greek shipping tycoons as heroes! Writers of historical fiction have also written gripping historical tales about the passage of ships across oceans.

The ocean, always intrinsic to trade and commerce, covers over seventy per cent of the earth’s surface, and most of the world’s population lives within a few hundred kilometres of the coast. So who has command of the sea? The doctrine of ‘freedom of the seas’ can be traced back to the seventeenth century, and is based on the idea that, besides a nation’s rights and jurisdiction (power) over ‘strips of sea’ adjacent to their coastlines, the seas belong to no one.

Technological developments, particularly from the mid-twentieth century, facilitated the exploitation of offshore resources, and the width of the ‘strips of sea’ became increasingly problematical as nations sought to extend their claims over the oceans. With rising populations, issues such as the depletion of fish stocks by long-distance fishing fleets, and environmental concerns surrounding pollution and waste from oil tankers and other commercial vessels, were also contentious. The development of weaponry on naval and other craft, as nations sought to use the ocean to pursue (increasingly long range) military objectives, was another matter of concern.

Enter the United Nations, and its efforts to legally define the uses of the oceans for the ‘individual and common benefit of humankind.’ Cooperation between nations was intrinsic to laying down international law in respect of the ocean. Many nations signed a treaty banning nuclear weapons on the seabed, and acknowledging that all resources of the seabed are ‘the common heritage of humankind.’ Decades of negotiation went into the UN Convention on the Law of the Sea, which was finally adopted by the UN in 1982. This Convention, or international treaty, means that a clear set of laws applies to water resources. There are over 165 countries that are signatories to the Convention and they are bound by its principles. The Convention provides for:

· An exclusive territorial sea boundary of 12 nautical miles (22 km). Nations can enforce their own laws and use resources within this offshore zone, which includes the seabed and its subsoil, and the air above it. It covers elements like fishing, mineral rights, and sea floor deposits.

· A Contiguous Zone of 24 nautical miles offshore, which can be used to enforce laws on matters like immigration, customs, and pollution.

· An Exclusive Economic Zone gives a nation limited rights over areas of up to 200 nautical miles offshore (provided there is no clash of rights with any coastal neighbours that ‘share’ the same zones).

Notwithstanding these outcomes, the UN Convention allows for ‘innocent passage’ through ocean waters by foreign vessels, provided they do no harm to the relevant nation, or break its local laws. UN bodies have been established to settle disputes between nations regarding the zones, their ‘boundaries,’ and activities within them, and also to develop a body of law that will be universally adopted and implemented.

Principles on the law of the sea are relevant to crimes committed at sea, the arrest and sale of ships, the salvage and recovery of ships lost at sea, and the prosecution of those responsible for environmental damage. Ships that operate in Polar waters (increasingly important because of the proliferation of cruise ships in polar regions) are now regulated by the UN Polar Code.

And to add to my last column… Why does the law treat flotsam, jetsam and derelict differently? Poldark anyone? There was an episode in an early season where debris was washed up on the Cornwall shore after a shipwreck, and villagers waited patiently on the sand to retrieve it. What law would apply?

Under traditional maritime law, there are distinct types of marine debris. Jetsam (the word is related to ‘jettison’) is an item deliberately thrown overboard (to lighten the load of a ship, for example). Flotsam refers to debris in the ocean that got there as a result of a shipwreck, or accident. If ever found, flotsam can be claimed by the original owner (because they never intended to relinquish ownership). In the case of jetsam, the finder will likely get to keep the item, as it was relinquished with the intention the owner would never be able to reclaim it. Derelict is another kind of debris, and is property deliberately deserted at sea by those in charge of it (so it is effectively abandoned).

Our current law is a little different from the Poldark situation. Under the UK Merchant Shipping Act, 1995, for example, there is an obligation to notify the authorities of property recovered from the ocean, and there are regulations around reporting wrecks as well.

All this is fascinating stuff, and much as I’d love to talk about Ross and Demelza Poldark in more detail, I’ve run out of space….