Once a vessel is southbound in the Malacca Strait (past Port Klang) and through the Singapore Strait until entering the South China Sea, either Malaysia, Singapore or Indonesia will claim territorial waters. It has perhaps been (mis)understood in the past that there are places along the way not claimed by any of the three countries. This is not the case.
Only if the vessel is passing through territorial waters without stopping, will it not be subject of any of the jurisdictions. The right of “innocent passage” is secured in Article 17 of the United Nations Convention on the Law of the Sea (UNCLOS). The passage, however, needs to be continuous and expeditious (art. 18.2). In practice, this means the vessel cannot stop except when forced to incidentally stop for reasons of safety, danger or distress. Slowing down also disqualifies.
We have recently seen an increase in situations where authorities from around the Malacca and Singapore Straits have ‘taken an interest’ in vessels and detained them for various reasons. Below is a short overview of what has caused the detentions.
Malaysia
If a vessel in Malaysian waters stops and anchors, the vessel needs to be cleared in and out of Malaysia and the Malaysian MMEA will require an agent to be appointed. If this is not done, the MMEA will likely detain the vessel and impose a fine. Ship-to-Ship (STS) operations at anchor is a good example of this. It is not an incidental stop and the right of innocent passage is ‘lost’.
Recently, the Port of Johor and Singapore have “discussed” where the exact boundary is between the two countries and respective ports. The area “discussed” is also right at the entrance to Port of Johor and off Tuas in Singapore where vessels may be waiting or performing other types of operations. This may lead to confusion at the Western part of Singapore and the Singaporean MPA has asked that vessels avoid the area entirely to avoid any misunderstandings. There is a military presence on both sides.
Malaysia is a growing hub for bunker operations. We have been involved in a case where the bunker supplier turned out to be unlicensed. The owners’ vessel got detained as a result without any fault of their own. The bunkers are typically ordered by the charterer, and the vessel was only receiving it, but time was lost nonetheless.
Indonesia
It has often been overlooked that activities such as transhipment, crew change and cargo operations within Indonesian waters can only be performed by an Indonesian shipping company, operating an Indonesian-flagged vessel and manned by Indonesian crew.
Transhipment activities (including launch boats carrying stores or crew) are categorised as activities that may violate Indonesian Law No. 17 of 2008.
The Indonesian Navy has recently been upholding this rule strictly. We have been made aware that live ammunition has been fired by the Indonesian Navy towards a commercial vessel for an undisclosed reason.
Once the Navy takes an interest, they usually also check:
a the completeness of the ship’s documents
b the completeness of the cargo documents
c the ship’s signs and markings
d the ship’s records, logs/journals
e the crew’s documents
This may take several days and lead to fines, if papers and/or the vessel is found not to be in order.
Singapore
The rules and regulations are well established in Singapore and usually do not lead to any ‘regular’ cases. However, anti-bribery, anti-terrorism and international fraud is increasingly being investigated when it may involve Singapore. The government takes it very seriously. It usually leads to thorough investigations and the powers of the police are far reaching. Severe measures may be taken to secure evidence for later prosecution, including detaining vessels for longer periods of time and they may even be confiscated.
Spica
Spica’s experience in dealing with the authorities in all three jurisdictions has been of value to owners and clubs, aiming to bring the international shipping community and local authorities closer together in cases with mutual interests. claims@spica.com.sg
Thomas Kjell Larsen
Following 10 years with an IG P&I Club, Thomas Kjell Larsen is the Regional Claims Manager for Spica Services in Singapore overseeing the handling of claims in six South East Asian countries. Spica is present in and represents most of the IG P&I Clubs in Myanmar, Thailand, Vietnam, Malaysia, Singapore and Indonesia, as well as a number of fixed premium P&I and leading hull underwriters from around the world.
