SOME IMPORTANT ASPECTS NOT DEALT WITH BY THE CODE.

As previously pointed out,many of the terms of the provisons of the code are not defined fully or not at all and may be subject to ambiguous interpretations or uses.For that reason,developing countries, mainly West and Central Africa, find many difficulties in the implementation of the code.The code is silent in many points.

-Whether or not it requires states at both ends to be contracting parties.

-Nothing is implied about reallocation for cargo with conference member lines in cases where national lines undercarry or do not carry at all upon a particular

trade.

-The attidudes of unions in various countries regarding the use of foreign chartered tonnage and foreign crew. -Nothing is said about Open Registry or Flag of Conve­

nience which is in contradiction with the principle of membership.

-The terms of transport contracts as developed countries impose the terms of transport by buying FOB and selling CIF.

-The most important questions which the West African countries are facing in the implementation of the Code are:Do landlocked countries have the right of carriage? Do they have the right to say who is to carry their right ? Can a country sell its trade share? How to deal

with transhipment cargo? The answer to these questions will be dealt with in two points: the right of landlocked

countries and transhipment cargo problems.

a> The Rights of Land Locked Countries

Few landlocked countries are shipowners. The most well known is Switzerland, ranked 46th in the Code list of nations as far as conditions governing entry into force is concerned. In West and Central Africa the land­ locked countries(<H) are not shipowners apart from one tentative to allow them a chartering company called the Lake Saohara Shipping (*2). The landlocked countries want to benefit from the Code provisions. This is a difficulty for a coastal country like Togo, as the Code did not provide any provision for this type of countries.

According to Sturmey ,the Code makes it clear that it is a cargo generating country which has the right to carry, not the countries in the port of which the cargo is loaded or unloaded, although the definition of the country of the origin or of destination is often difficult, this does not affect the principle which is quite clear. Thus, landlocked countries have the right of carrying under the Code and may be well felt that paragragh 5 of article 2 of the Code provision treat these right in a very cavalier fashion. It is very difficult to understand why a country whether land locked or not,which faces real difficulties in putting tonnage

Ofl):These Landlocked Countries in Vest Africa are: Burkina Faso,Niger and Mali.

(if2):S.G Sturmey , Workbook on the application of the

into a trade, should have no say over how its cargo is to be carried.

This opinion seems to be reasonable because the objective of the Liner Code is to enable all developing countries to participate in trade not only some of them having the previlege of being a coastal country. So article 5 paragraph (2-5) has to be amended by the words " unless the cargo generating country otherwise decides". One could also include paragraph 6 and 7 of the same article in the amendment.Unti1 this is done or until the time of a revieew conference,al1 countries must be strict with these paragraphs .

Therefore the landlocked countries can only hope that their partners in negotiations will pay attention to the reference to paragraph 4 where the flexibility formula "unless otherwise mutually agreed" appears.So then the idea of the Lack Sahara Shipping Company duly incorporated and recognized by its governments to operate as a liner company on the trade from Africa to the rest of the world and to issue its own bills of lading could apply for membership of the conference and be accepted.

b)The transhipment problems.

Again in this important question the code is completly silent whether a cargo in transit must be shared according to the 40-40—20 principle or not.Most of the cargo coming from landlocked countries in West and Central Africa passes in transit through the ports such

as Togo, Benin,Ivory Coast,Senegal In Europe this occurs in some ports such as Hamburg,Antwerpen,Rotterdam. According to article 2 paragraph 5 ":If for anyone of the countries whose trade,is carried by a conference, there are no national shipping lines participating in the carriage of that trade,the share of the trade to which national shipping lines of that country would be entitled under article 2 paragraph 4 shall be distributed among individual member lines participating in the trade in proportion of their respective share".

According to this paragraph it is clear that the cargo of landlocked countries in transit must be considered as a carga belonging to countries without a fleet and so if these countries do not participate in the carriage of their cargo; this cargo must be shared among the conference member lines taking into account that the national lines of the ports of transit must have advantages in the sharing. But this seems to be complex. To go about this complexity one could argue that in applying the code in a trade which includes a landlocked country which as usual, does not have a fleet of ocean going ships,it should be possible for the landlocked country to say to the conference something to the effect that since their transit country"X" they wish that the lines of that country"X" should have the right to carry their share of the trade;they might add that, that share should be the same as that of'X" in its own trade or 40 per cent whichever is higher.In some conference

agreements the country is not allowed to decide which line should have the right to carry its trade,so it would be the conference which would appear in the role of the good fairy best owning the gift of erriage.While the

transit country lines would probably get the same cargo quota in either case,the position of the landlocked country in order to deal with the lines of "X" and with all transit problem, would be significantly stronger if it, rather than the conference is seen as the decision maker in the matter(«l).

An interesting question is whether a country with a right to carriage arising from negotiation under the code which cannot or does not wish to carry its share can sell it ? The code does not say anything about this ques­ tion .In principle we see no reason why not,because the cargo sharing formula is a political right and any coun­ try can claim this right.But in pratice,it could be dif­ ficult regarding to whom this right must be sold.It might be logical if this right is sold to the coastal country where the cargo is transhipped if it is a landlocked country, or the -main commercial partner if it is a coastal country without a fleet.

These are some difficulties arising in the inter­ pretation and applicatin of the code,but there are also some difficulties coming from the international marittime environment.

SECTION II DIFFICULTIES ARISING WITHIN THE INTER­