Country
Panama
Sources
InforMEA
Tagging
Remedies, Admissibility, Jurisdiction, Permits
Abstract
The Camouco was a fishing vessel flying the flag of Panama. Its owner was “Merce-Pesca (S.A.)”, a company registered in Panama. On 16 September 1999, the Camouco left the port of Walvis Bay (Namibia) to engage in longline fishing in the Southern seas. On 28 September 1999, the Camouco was boarded by a French surveillance frigate in the exclusive economic zone of the Crozet Islands, 160 nautical miles from the northern boundary of the zone. The Camouco was re-routed and escorted under the supervision of the French navy to Port-des-Galets, Réunion. The procès-verbal of violation stated that the master of the Camouco was involved in unlawful fishing in the exclusive economic zone of the Crozet Islands under French jurisdiction and failure to declare entry into the exclusive economic zone of the Crozet Islands, while having six tonnes of frozen Patagonian toothfish on board the vessel. In its order of 8 October 1999, the court of first instance at Saint-Paul, confirmed the arrest of the Camouco and ordered that the release of the arrested vessel would be subject to the payment of a bond in the amount of 20,000,000 FF. On 7 October 1999, the Master was charged and placed under court supervision by the examining magistrate of the tribunal de grande instance at Saint-Denis. The Applicant requested the International Tribunal for the Law of the Sea to find that the French Republic had failed to observe the provisions of the United Nations Convention on the Law of the Sea (UNCLOS) concerning prompt release of the Master of the vessel Camouco as well as the vessel itself. The Applicant also demanded that the French Republic promptly release the vessel Camouco and its Master, against payment of a reasonable bond. The Government of the French Republic rejected all submissions presented on behalf of the Republic of Panama. The Tribunal examined the question of admissibility of the application. The objection to admissibility by the Respondent was that domestic legal proceedings were currently pending before the court of appeal of Saint-Denis, whose purpose was to achieve precisely the same result as that sought by the present proceedings under article 292 of the Convention. The Respondent argued that the Applicant was incompetent to invoke this procedure as “a second remedy” against a decision of a national court and that the Application clearly pointed to a “situation of lis pendens which casts doubt on its admissibility”. In the view of the Tribunal, it was not logical to read the requirement of exhaustion of local remedies into article 292. Article 292 of the Convention was designed to free a ship and its crew from prolonged detention on account of the imposition of unreasonable bonds in municipal jurisdictions. Equally, it safeguarded the interests of the coastal State by providing for release only upon the posting of a reasonable bond or other financial security determined by a court or tribunal referred to in article 292, without prejudice to the merits of the case in the domestic forum against the vessel, its owner or its crew. Article 292 provided for an independent remedy and not an appeal against a decision of a national court. No limitation should be read into article 292 that would have the effect of defeating its very object. Article 292 permitted the making of an application within a short period from the date of detention and it was not normally the case that local remedies could be exhausted in such a short period. The Tribunal then analyzed the question of non-compliance with article 73, paragraph 2, of the Convention. It decided whether the bond imposed by the French court of 20 million FF was “reasonable”. The Tribunal considered that a number of factors were relevant in an assessment of the reasonableness of bonds. They included the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form. The Tribunal concluded that the bond of 20 million FF imposed by the French court was not “reasonable”. It ordered that France should promptly release the Camouco and it’s Master upon the posting of a bond of eight million French Francs.