MV St. Vincent and Grenadines v. Guinea

PIL 50
M/V Saiga (St. Vincent & Grenadines v. Republic of Guinea) (1999)

Facts:
1. The Saiga is an oil tanker. At the time of its arrest on 28 October 1997,
it was owned by Tabona Shipping Company Ltd. of Nicosia, Cyprus, and
managed by Seascot Shipmanagement Ltd. of Glasgow, Scotland. The
ship was chartered to Lemania Shipping Group Ltd. of Geneva,
Switzerland. The Saiga was provisionally registered in Saint Vincent
and the Grenadines on 12 March 1997. The Master and crew of the ship
were all of Ukrainian nationality. There were also three Senegalese
nationals who were employed as painters. The Saiga was engaged in
selling gas oil as bunker and occasionally water to fishing and other
vessels off the coast of West Africa. The owner of the cargo of gas oil
on board was Addax BV of Geneva, Switzerland.
2. Under the command of Captain Orlov, the Saiga left Dakar, Senegal, on
24 October 1997 fully laden with approximately 5,400 metric tons of
gas oil. On 27 October 1997, between 0400 and 1400 hours and at a
point 1025'03"N and 1542'06"W, the Saiga supplied gas oil to three
fishing vessels. This point was approximately 22 nautical miles from
Guineas island of Alcatraz. All three fishing vessels were licensed by
Guinea to fish in its exclusive economic zone. The Saiga then sailed in
a southerly direction to supply gas oil to other fishing vessels at a
prearranged place. Upon instructions from the owner of the cargo in
Geneva, it later changed course and sailed towards another location
beyond the southern border of the exclusive economic zone of Guinea.
3. At 0800 hours on 28 October 1997, the Saiga was at the south of the
southern limit of the exclusive economic zone of Guinea. At about 0900
hours the Saiga was attacked by a Guinean patrol boat. Officers from
that boat and another Guinean patrol boat (P328) subsequently
boarded the ship and arrested it. On the same day, the ship and its
crew were brought to Conakry, Guinea, where its Master was detained.
The travel documents of the members of the crew were taken from
them by the authorities of Guinea and armed guards were placed on
board the ship. Between 10 and 12 November 1997, the cargo of gas
oil on board the ship, amounting to 4,941.322 metric tons, was
discharged on the orders of the Guinean authorities. Some of the crew
were allowed to leave on different occasions, only the Master and six
crew members remained in Conakry until the ship was released on 28
February 1998.
4. On 13 November 1997, Saint Vincent and the Grenadines submitted to
this Tribunal a Request for the prompt release of the Saiga and its crew
under article 292 of the Convention. On 4 December 1997, the Tribunal
delivered Judgment on the Request. The Judgment ordered that Guinea
promptly release the Saiga and its crew upon the posting of a
reasonable bond or security [$400k] by Saint Vincent and the
Grenadines.
5. On 13 January 1998, the Agent of Saint Vincent and the Grenadines
filed in the Registry of the Tribunal a Request for the prescription of
provisional measures in accordance with article 290, paragraph 5, of
the United Nations Convention on the Law of the Sea (UNCLOS)
concerning the arrest and detention of the vessel M/V Saiga.
6. Subsequently, Republic of Guinea and Saint Vincent & Grenadines
agreed to submit to the jurisdiction of the International Tribunal for the
Law of the Sea for the resolution of the dispute between the two states
regarding MV SAIGA
7. By Order dated 11 March 1998, the Tribunal decided upon the Request
for the prescription of provisional measures as follows:
a. Art 290, par. 1, Convention] Guinea shall refrain from enforcing
and taking judicial or administrative measure against M/V Saiga,
its Master, and crew
b. No action is taken by respective authorities of both countries
which might aggravate the dispute herein.
8. In the course of the testimony of witnesses, a number of exhibits were
presented, including the ff.:
a. Photographs said to show damage to the Saiga and equipment on
board as result of the attack by the Guinean authorities
b. Photographs of Second Officer of the Saiga (Klyuyev) and painter
employed in the ship (Mr. Niasse) showing injuries alleged to have been
suffered by them as a result of force used to arrest the Saiga.
c. A nautical chart showing areas off the coast of Guinea
d. A nautical chart showing the courses said to have been taken by the
Saiga and the Guinean patrol boats
SUBMISSIONS:
[St. Vincent & Grenadines]
(1) the actions of Guinea (inter alia the attack on the m/v Saiga and its
crew in the exclusive economic zone of Sierra Leone, its subsequent arrest,
its detention and the removal of the cargo of gasoil, its filing of charges
against St. Vincent and the Grenadines and its subsequently issuing a
judgment against them) violate the right of St. Vincent and the Grenadines
and vessels flying its flag to enjoy freedom of navigation and/or other
internationally lawful uses of the sea related to the freedom of navigation, as
set forth in Articles 56(2) and 58 and related provisions of the Convention;
(2) subject to the limited exceptions as to enforcement provided by Article
33(1)(a) of the Convention, the customs and contraband laws of Guinea,
namely inter alia Articles 1 and 8 of Law 94/007/CTRN of 15 March 1994,
Articles 316 and 317 of the Code des Douanes, and Articles 361 and 363 of
the Penal Code, may in no circumstances be applied or enforced in the
exclusive economic zone of Guinea;
[Guinea] the Government of the Republic of Guinea asks the International

Tribunal to dismiss the
Submissions of St. Vincent and the Grenadines in total and to adjudge and
declare that
St. Vincent and the Grenadines shall pay all legal and other costs the
Republic of Guinea
has incurred in the M/V SAIGA cases nos.1 and 2.
ISSUES:
1. WON the International Tribunal on the Law of the Seas has
jurisdiction. (YES, by agreement of the parties and )
2. Challenges to admissibility:
a. Registration of the Saiga
i. G: SVG has no standing to sue in connection with Saiga
because it was not validly registered in its name. This is
pursuant to the contention that Saiga was unregistered
between 12 Sep 28 Nov 1997.
ii. SVG: Saiga was properly registered and during period of
arrest the provisional certificate of registration is valid
registration.
Saiga was provisionally registered on 12
March 1997 (Entry states that it is valid thru 12 September
1997). On 28 Nov 1997, a permanent certificate of
registration was issued.
iii. Court: Not established that Vincentian registration of
Saiga was extinguished between period of Provisional and
Permanent Certificate of Registration. Pursuant to article
91, paragraph 2, Saint Vincent and the Grenadines is under
an obligation to issue to ships to which it has granted the
right to fly its flag documents to that effect. The issue of
such documents is regulated by domestic law.
b. Genuine link
i. G: No genuine link between Saiga and SVG. [Legal basis:
Art. 91, par. 1 of Convention: There must exist a genuine
link between the State and the ship]
ii. SVG: Nothing in the Convention to support the contention
that the existence of a genuine link between a ship and a
State is a necessary precondition that the absence of such
a genuine link deprives a flag State of the right to bring an
international claim against another state in respect of
illegal measures taken against the ship. In any case, there
is a genuine link. (ie. Owner of Saiga is represented in SVG)
iii. Court:
c. Exhaustion of local claims
d. Nationality of Claims
NOTES:
SUMMARY OF SUBMISSIONS & HOLDING OF THE COURT
St.
Vincent
&
Court
Guinea
Grenadines
the
actions
of
the the
actions
of
the Guinea violated the rights
Republic
of
Guinea Republic of Guinea did not of Saint Vincent and the
violated the right of St. violate the right of St. Grenadines under the
Convention in arresting
Vincent
and
the Vincent and
Grenadines and of vessels the Grenadines and of the Saiga, and in detaining
flying her flag to enjoy vessels flying her flag to the Saiga and members of
freedom of navigation enjoy
freedom
of its crew, in
prosecuting
and
and/or
other navigation and/or other
convicting
its
Master
and
internationally lawful uses internationally lawful uses
of the sea, as set forth in of the sea, as set forth in in seizing the Saiga and
Articles 56(2) and 58 and Articles 56(2) and 58 and confiscating its cargo
related
provisions
of related
UNCLOS
provisions of UNCLOS;
subject to the limited Guinean laws can be
exceptions
as
to applied for the purpose of
enforcement provided by controlling
and
Article
33(1)(a)
of suppressing the sale
UNCLOS, the customs and of gasoil to fishing vessels
contraband laws of the in the customs radius
Republic Guinea may in (rayon des douanes)
no
circumstances
be according to
applied or enforced in the Article 34 of the Customs
exclusive economic zone Code of Guinea;
of the Republic of Guinea
Guinea did not lawfully Guinea
did
lawfully in arresting the Saiga
exercise the right of hot exercise the right of Hot Guinea acted in
pursuit under Article 111 Pursuit under Article 111 contravention of the
provisions of the
of UNCLOS in respect of of
the M.V. Saiga and is UNCLOS in respect to the Convention on the
liable to compensate the MV SAIGA and is not exercise of the right of hot
M.V. Saiga according to liable to compensate the pursuit and thereby
violated the rights of Saint
Article 111(8) of UNCLOS
M/V Saiga
and
the
according
to
article Vincent
Grenadines
111(8) of UNCLOS;
the Republic of Guinea the Republic of Guinea
has
violated
Articles has not violated article
292(4)
and
296
of 292(4)
and
296
of
UNCLOS in not releasing UNCLOS
the M.V. Saiga and her
crew immediately upon
the
posting
of
the
guarantee of US$400,000
on 10th December 1997 or

the
subsequent
clarification from Crdit
Suisse on 11th December
1997
the citing of St. Vincent
and the Grenadines in
proceedings instituted by
the Guinean authorities in
the criminal courts of the
Republic of Guinea in
relation to the M.V. Saiga
violated the rights of St.
Vincent
and
the
Grenadines
under
UNCLOS;
the Republic of Guinea

shall immediately repay
to St. Vincent and the
Grenadines
the
sum
realized on the sale of the
cargo of the M.V. Saiga
and return the bank
guarantee provided by St.
Vincent
and
the
Grenadines
The mentioning of St.

Vincent
and
the
Grenadines in the Cdule
de Citation of
the Tribunal de Premire
Instance de Conakry of 12
December 1997 under
the
heading
CIVILEMENT
...
RESPONSABLE CITER
did not violate the rights
of St. Vincent
and the Grenadines under
UNCLOS
There is no obligation of
the Republic of Guinea to
immediately return to
St.
Vincent
and
the
Grenadines
the
equivalent
in
United
States Dollars of the
discharged
gasoil
Guinea shall pay

compensation to Saint
Vincent and the
Grenadines in the sum
of US$ 2,123,357 (United
States Dollars Two
Million One Hundred and
Twenty-Three Thousand
Three Hundred and FiftySeven) with interest, as
indicated in paragraph
175
the Republic of Guinea Guinea has no obligation each party shall bear its
shall pay damages as a to pay damages and St. own costs
result of such violations Vincent should pay the
with
costs of proceedings
interest thereon & pay
costs
of
arbitral
proceedings

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PIL 50

M/V Saiga (St. Vincent & Grenadines v. Republic of Guinea) (1999)

[Guinea] the Government of the Republic of Guinea asks the International

on 10th December 1997 or

the Republic of Guinea

The mentioning of St.

Guinea shall pay

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