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GENERAL SURVEY
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(1) Only the Netherlands Government has returned a negative reply to the Question, expressing the view that even a Recommendation on the matters in issue would be going too far and that the whole subject of sanctions should be left untouched for national law. Otherwise, except that the German Government would prefer a Recommendation on the subject-matter of the Question, and that Finland and Latvia do not specifically refer to the case of the obtaining of employment by forged documents, though it is perhaps to be understood to be covered by their replies, the other Governments appear to have no doubt but that the Draft Convention should require national laws or regulations to provide for sanctions for cases such as those specified in the Question where the fundamental rules of the draft would be violated. As the Belgian and Indian Governments observe, this requirement is essential in order to make the Convention effective. Besides, as the French Govern- ment indicates, the majority of existing national laws or regulations already provide for sanctions, penal or disciplinary as the case may be, against shipowners, masters or officers who do not comply with their provi- sions relating to certificates of capacity, and, if the Draft Convention imposed an obligation to this effect, it would merely be confirming the existing situation. Further, as Finland and Latvia suggest, sanctions should be provided against any person (not only the shipowner) engaging another who is not certificated as required by the Draft Convention. Finland, in fact, indicates that under the regulations in that country the person who acts as master or officer without possessing the requisite certificate is also liable to sanctions.
(2) On the point as to the nature of the sanctions, most of the Governments prefer penal sanctions for the two cases specified in the Question. Other Governments, however (e.g. Estonia, Finland, France, Latvia, Rumania, Yugoslavia), some of which clearly have other cases in mind besides the two in question, state or imply that the nature of the sanctions should be settled by national laws or regulations. Thus Estonia, Finland and France contemplate that the nature of the sanctions might vary with the circumstances of the offence, Estonia, for example, suggesting that disciplinary sanctions might
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QUESTION 5
be provided for less serious cases, while penal sanctions would be more appropriate for more serious cases or for a second offence. Similarly, Yugoslavia prefers penal sanctions for offences by the shipowner and disciplinary sanctions for offences by masters or officers.
In view of the replies as a whole, therefore, it would appear that the draft to be submitted to the Conference should first lay down the general principle that national laws or regulations are to determine the sanctions to be applied in cases where the provisions of the draft are not complied with. This principle that the necessary measures should be taken in each country to repress breaches of the rules of the draft may be assumed to be the basis on which so many Governments have given affirmative replies to the two examples of such a breach mentioned in the Question.
As for the nature of the sanctions to be provided for any particular type of breach, it seems clear that there can hardly be any question of endeavouring to determine this question uniformly for all countries, but that national laws or regulations should be left free to choose between penal or disciplinary sanctions according to circumstances.
The draft might then go on to specify that sanctions are in particular to be applied in the cases to which the Question referred. It will be appreciated, however, that the offence of engaging an uncertificated person may be committed by other persons besides the shipowner, who alone was mentioned in the Question, and the Office accordingly proposes to draft its clause on this point so as to include the shipowner or his agent or the master who engages a person without a certificate in violation of the rules. It will also no doubt be appreciated that a wrongful engagement as such would not cover the case where a person not originally engaged to perform duties for which a certificate would be required is nevertheless allowed actually to perform such duties, and it is therefore proposed to specify this case too in the draft. Lastly, it would seem desirable, with reference to the case of forged documents, to make it clear in the draft that it is the actual obtaining of certificated employment by forged documents, and not only attempts, as the wording of the Question appeared to suggest, for which
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