Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom

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PLACES OF REFUGE FOR SHIPS

Publications on Ocean Development Volume 51 A Series of Studies on the International, Legal, Institutional and Policy Aspects of Ocean Development General Editor: Vaughan Lowe Chichele Professor of Public International Law and Fellow of All Souls College, Oxford University

The titles published in this series are listed at the end of this volume.

Places of Refuge for Ships Emerging Environmental Concerns of a Maritime Custom

EDITED BY

ALDO CHIRCOP AND

OLOF LINDEN

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

A C.I.P. record for this book is available from the Library of Congress.

Printed on acid-free paper.

ISBN 90 04 14952 X

© 2006 Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

Contents Acknowledgements ..................................................................................

ix

Foreword ..................................................................................................

xi

Abbreviations ..........................................................................................

xv

Chapter 1 Characterising the Problem of Places of Refuge for Ships ...................... Aldo Chircop, Olof Linden, Detlef Nielsen

1

Part I: Management Perspectives and Responses Chapter 2 The IMO Guidelines on Places of Refuge for Ships in Need of Assistance .................................................................................. Aldo Chircop Chapter 3 The Integrated Coastal and Ocean Management Framework .................. Olof Linden Chapter 4 A Consideration of the Environmental Component of the IMO Guidelines on Places of Refuge for Ships in Need of Assistance with Special Reference to Oil Pollution .................................................. William Ritchie Chapter 5 Review of Decision-Making by Maritime Administrations for Ships in Need of Assistance – Lessons for Risk Assessment .................. Jens-Uwe Schröder Chapter 6 Port Perspectives and Environmental Management Considerations ........ Rosa Mari Darbra Roman

35

61

75

93

119

vi

Contents

Chapter 7 Communications Crises and Media Management .................................... Mark Clark

145

Part II: Legal and Policy Perspectives and Responses Chapter 8 The Customary Law of Refuge for Ships in Distress .............................. Aldo Chircop Chapter 9 Law of the Sea and International Environmental Law Considerations for Places of Refuge for Ships in Need of Assistance .............................. Aldo Chircop

163

231

Chapter 10 Refuge and Salvage .................................................................................. Proshanto K. Mukherjee

271

Chapter 11 Places of Refuge: Compensation for Damage Perspective ...................... Gotthard Mark Gauci

299

Chapter 12 Insurance Perspective on Places of Refuge .............................................. Patrick Donner

321

Chapter 13 Refuge and Recovery in General Average .............................................. Hugh Kindred

347

Part III: National Approaches Chapter 14 Places of Refuge in a Federal Jurisdiction – The Australian Experience ................................................................................................ Sam Bateman and Angela Shairp Chapter 15 Places of Refuge: The Belgian Experience .............................................. Eric Van Hooydonk

375

415

Contents

vii

Chapter 16 The Experience of the United Kingdom .................................................. Toby Stone

429

Chapter 17 Places of Refuge for Ships: The Danish Approach .................................. John Liljedahl

455

Chapter 18 Places of Refuge in Germany .................................................................. Uwe Jenisch

471

Chapter 19 The United States’ Approach to Implementing the IMO Guidelines on Places of Refuge .................................................................................. Paul Albertson Chapter 20 Places of Refuge: Considerations for Determining a Canadian Approach .................................................................................. Philip John

489

505

The Contributors ......................................................................................

533

Index ........................................................................................................

545

Acknowledgements This book is the result of a research project initiated and led by the editors at the World Maritime University (WMU), Malmö, Sweden, between 2004–2005, and completed at the Marine & Environmental Law Institute, Dalhousie Law School, Halifax, Nova Scotia, Canada, in its ﬁnal stage. The editors acknowledge the support and assistance of several institutions and persons. We thank the Saléns Foundation (Sven and Dagmar Saléns Stiftelse), Stockholm, Sweden, for their generous support which made this book a reality. A workshop convened as part of the project also received generous support from the WMU. The editors are grateful to WMU President Karl Laubstein for his support. The assistance of David Moulder (former Librarian), Robert Bauchspies (Head of Information Services), Susan Wangeci-Eklöw (Assistant Librarian) and Cecilia Denne (Library Assistant) at the WMU library is gratefully acknowledged. In particular, Cecilia’s assistance was invaluable in competently tracking down numerous IMO and other documents. Valuable assistance was also received from Ann Morrison (Law Librarian) and David Michels (Public Services Librarian) at the Dalhousie Law School library. The production of the book was made possible through the assistance of Susan Rolston, of Seawinds Consulting Services, who performed the unenviable, but highly professional task of editing all chapters for text and consistency, and provided numerous helpful suggestions to all authors. Patrick Canning, Dalhousie Law School student, worked on sourcing and citation in all endnotes. Maria Nilsson, faculty assistant at WMU, provided able general support in the management and accounting of the research project and organization of the workshop. Assistance with other aspects of the project was also received from Eva Holtén, Executive Assistant to the President, and Hennie Oldenburg, Director of Personnel, both at WMU. Finally, the editors express their gratitude to all the contributing authors for their commitment and co-operation throughout the project. Numerous discussions on this subject amongst faculty at WMU helped the research project come to fruition. Aldo Chircop Halifax, N.S., Canada Olof Linden Malmö, Sweden

Foreword During my 16-year sea career I was fortunate in only having to visit a place of refuge twice. The ﬁrst time, after loading large, heavy logs in Nigeria, we sailed into a very heavy swell causing some of the logs, which had been improperly secured, to shift and endanger the ship. The master took the vessel into Freetown Bay, Sierra Leone, where we secured the logs and then continued the voyage some two days later. The second time was much more serious. I was master of a small, refrigerated cargo ship which was in ballast, i.e., without cargo, when we encountered a very severe winter storm in the Channel. The weather reached more than Force 10 and vessels were in difﬁculties everywhere. My empty vessel was in great danger as it was quickly becoming difﬁcult to manoeuvre. I took the ship as close to the English coast as I could and sheltered in a small bay near Dover for nearly 48 hours. A number of vessels ran aground and foundered during this storm. In the ﬁrst case the master notiﬁed the Sierra Leone authorities that we were coming in to re-secure cargo. In the second instance I notiﬁed the British authorities what I was doing. No permission was ever sought, and the only questions that were ever asked were whether we required assistance. The only other interested parties notiﬁed in each case were the shipowners. This was the procedure, if it can even be called that, for calling at a port of refuge or entering a place of refuge for a vessel experiencing some of the many difﬁculties that might occur during a voyage. In most cases the decision was made by the master of the vessel concerned, in others it might be made by a salvor or someone in charge of a towage operation. Like assisting ships in distress, rescuing life at sea, or offering salvage services, the entry to places of refuge by stricken vessels had been part of maritime custom and tradition since seafaring began. Both maritime and coastal states accepted that it was so and it was rarely if ever challenged – despite the fact that such places were almost always situated within the jurisdiction of coastal or island states. However, even the father of modern international law, the great Professor Oppenheim, suggested that such ‘jurisdiction is to a certain small extent limited when the vessel has been compelled to enter a port in distress’.1 This important, new book, containing some 20 chapters written by a group of well-known international scholars and maritime specialists, provides a very comprehensive study suggesting that this long-accepted principle has changed

1

L. Oppenheim, International Law – A Treatise, Vol. 1, 8th edition, by H. Lauterpacht (London, Longman, 1955) at 504.

xii

Foreword

drastically – perhaps to the extent that it is on the verge of vanishing, or so changed that it looks very different from its traditional conception. However, the book also points out that the principle is not going away without a ﬁght. Organized into two parts that examine the subject’s management perspectives and responses, as well as its legal and policy perspectives and responses, the book provides a very balanced view on where this principle has come from, how it has been utilized and what has happened to it today. It is made quite clear that the increasing concern of states in protecting their coastal waters from any action over which ‘control’ cannot be exercised has led to ever greater difﬁculties in this area. Many of these difﬁculties are, of course, due to the global pre-occupation in protecting the environment generally and the marine environment speciﬁcally. Global prosperity and its commensurate industrialisation and energy demands has resulted in greatly increased marine transportation, especially that involving pollutants such as oil and chemicals. Much of this cargo is also carried on very large vessels navigating along the major sea lanes of the world. Although shipping has become safer and much more environmentally conscious than ever, accidents and other difﬁculties are virtually unavoidable and, from time to time, a place of refuge is needed in order to stabilize an otherwise threatening or dangerous situation. In the last three or four decades the ‘places of refuge’ principle had already changed imperceptibly. As I already indicated, in earlier times, access to such places was simply taken for granted and permission was hardly ever requested. But in more recent times the coastal state’s permission was invariably sought. That was probably the ﬁrst stage of the changes that have overtaken the principle. The second stage was reached in more recent times when coastal states refused to grant access on an increasingly regular basis. The political and environmental pressures that have led to this stage are fully discussed in many chapters of the book. The fear of a major environmental disaster with widespread repercussions and effects on a coastal ﬁshery or tourist resource and the general human ‘not-in-my-backyard’ reaction have made a refusal of access the norm rather than the exception. As a result, stricken vessels were either left to their own devices or sent somewhere else. This led to a form of ‘maritime leprosy’ where such vessels, which could easily have had their problems stabilized when permission was ﬁrst requested, wandered across the ocean in the hope that somewhere a place of refuge could be found. In other cases, ships simply sank and then spread their pollutant cargo over many coasts. In these cases the seafarers or salvors involved continued to endure great danger. Shipowners, salvors and mariners have all deplored this trend and the International Maritime Organization (IMO) has ﬁnally taken notice and has begun to investigate the problem. Mariners, in particular, are very concerned about what has occurred. They, quite rightly, feel that problems in gaining access to places of refuge will only exacerbate already difﬁcult situations and place further pressure on masters and other crew members. Mariners know that

Foreword

xiii

they may ﬁnd themselves in a real dilemma when a serious maritime accident occurs. They have an obligation to take care of ship and crew, but must also obey coastal state directions. This can lead to a real conﬂict situation and when loss and damage occurs masters and other crew members may well be detained or prosecuted by the coastal state for actions over which they had little or no control.2 Nevertheless, IMO member states seem to have little enthusiasm to tackle the places of refuge problem and establish some type of international rule, which is long overdue. As the UN specialised agency responsible for shipping, IMO has long been admired for its skills in furthering the ‘safer ships and cleaner seas’ principle at the international level through a series of widelyaccepted international treaties. However, the organization has steered clear of subjects that are considered non-technical and politically volatile. This has again been illustrated by IMO’s recent difﬁculties in developing regimes related to maritime security.3 There also appear to be concerns that the ‘Places of Refuge’ subject could not be discussed in technical terms alone and that coastal state sovereignty, environmental pressures, as well as security concerns, would politicise the discussion. It remains to be seen what will happen, but it appears that the IMO Legal Committee has already moved the subject down on the agenda for action. All of these issues are eloquently and thoroughly discussed in this book. But the book also shows that if the principle of permitting stricken vessels into places of refuge is lost, the maritime world will also have lost more than the ships that will be affected. In an increasingly cynical and self-centred world we will also have lost a long-standing moral and humanitarian principle that has, in most cases, had positive results. But today we seem to be less prepared to risk the so-called ‘common good’ for the sake of what are perceived to be isolated or individual ‘interests’ – even if these involve endangering others who are in peril. Fortunately, the book also considers a number of very positive and innovative ideas and initiatives on how we may be able to extricate ourselves from this difﬁcult problem. Hopefully the book will reach those who will have to make the necessary decisions. Finally, it is also of special interest that the book not only contains contributions by a number of authors closely connected to the World Maritime University (WMU), based in Malmö, Sweden, but is also published as a result

2 This has led to the recent establishment of the ‘IMO/ILO Ad Hoc Expert Working Group on the Fair Treatment of Seafarers in the Event of a Maritime Accident’ and its private sector Comité Maritime International counterpart. 3 The development of the International Ship and Port Security Code (ISPS Code) as well as the current work on revising the Convention on the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 (SUA 1988) and its Protocol covering Fixed Offshore Platforms (SUA Platforms 1988).

xiv

Foreword

of a research project at this institution. Although created only 22 years ago under IMO auspices, this unique university has already established itself as a pre-eminent global institution of higher education in various aspects of the international maritime sector. This book marks a further step in the university’s research development and publication programme. This is a welcome, additional contribution to international maritime scholarship. Edgar Gold, CM, AM, QC, PhD, FNI4

4 Adjunct Professor of Maritime Law, World Maritime University, Malmö, Sweden; Dalhousie University, Halifax, Canada; University of Queensland, Brisbane, Australia; Past-President, Canadian Maritime Law Association; Titulary Member, Comité Maritime International.

Abbreviations AAPA AAT ACOPS ACP ACT AIDE AIS ALARP AMSA BBC CCG CCME CERCLA CLC CMI COTP CPSOs CWS DFO DMA EC ECDIS EEZ EMAS EMS EMSA EPA ESPO ETV EU FMEA FMSC FOSC FRG FSA FTA

American Association of Port Authorities Australian Antarctic Territory Advisory Committee on Protection of the Sea Area Contingency Plan (US) Australian Capital Territory Association Internationale de Dispacheurs Européens automatic identiﬁcation system as low as reasonably practicable Australian Maritime Safety Authority British Broadcasting Corporation Canadian Coast Guard Central Command for Maritime Emergency (Germany) Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (US) International Convention on Civil Liability for Oil Pollution Damage Comité Maritime International Captain of the Port (US) Counter Pollution and Salvage Ofﬁcers (UK) Canadian Wildlife Service Department of Fisheries and Oceans (Canada) Danish Maritime Authority European Community electronic chart and information system exclusive economic zone eco-management and audit scheme (EMAS) environmental management system (EMS) European Maritime Safety Agency United States Environmental Protection Agency European Sea Ports Organization emergency towing vessels European Union failure mode and effect analysis Federal Maritime Security Co-ordinator (US) Federal On-Scene Co-ordinator (US) Federal Republic of Germany formal safety assessment fault tree analysis

xvi GBRMP GBRMPA GDR GIS GNN H&M HAZOPS HELCOM HFO HNS

HSC IAMSAR ICAM ICOM ICS ICS ICZM IMO IOPCF ISM ISPS ISU ITLOS ITOPF IUMI LLMC LOF LOS Convention MAIB MARPOL MAS MCA MEHRA MEPC MFNs MPA MRC MSC

Abbreviations Great Barrier Reef Marine Park Great Barrier Reef Marine Park Authority German Democratic Republic geographic information system Government News Network press ofﬁcers hull and machinery hazardous operability studies Helsinki Commission (Baltic Marine Environment Protection Commission) heavy fuel oil International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea high speed craft International Aeronautical and Maritime Search and Rescue Manual integrated coastal area management integrated coastal and ocean management Incident Command System (US) International Chamber of Shipping integrated coastal zone management International Maritime Organization International Oil Pollution Compensation Fund International Safety Management Code International Ship and Port Facility Security Code International Salvage Union International Tribunal for the Law of the Sea International Tanker Owners Pollution Federation International Union of Marine Insurance Convention on Limitation of Liability for Maritime Claims Lloyd’s Open Form of Salvage Agreement United Nations Convention on the Law of the Sea Marine Accident Inspection Branch (UK) International Convention for the Prevention of Pollution from Ships maritime assistance service Maritime and Coastguard Agency (UK) marine environment high risk areas Marine Environment Protection Committee (IMO) most-favoured nation clauses marine protected area Marine Response Center Maritime Safety Committee (IMO)

Abbreviations MWA NAV NCP NEPA NIMBY NMCA NRS NRT NSW NT OCMI OCS OPA OPRC P&I P&I PSSA RCC REBCO REET RP RRT SA SAR SCOPIC SCU SDR SHIPPOS SOK SOLAS SOSC SOSREP SRC SSSI STS TSS UK US USCG USSR VDR

xvii

Marine Wildlife Area (Canada) Sub-Committee on Safety of Navigation (IMO) National Contingency Plan Danish Environmental Protection Agency ‘not in my backyard’ National Marine Conservation Area (Canada) National Response System (US) National Response Team (US) New South Wales (Australia) Northern Territory (Australia) Ofﬁcer In Charge, Marine Inspection (US) Offshore Constitutional Settlement (Australia) Oil Pollution Act of 1990 (US) Convention on Oil Pollution Preparedness, Response and Cooperation Mutual Protection and Indemnity Association protection and indemnity particularly sensitive sea area rescue co-ordination centre Russian export blend crude oil Regional Environmental Emergency Team responsible party Regional Response Teams (US) South Australia search and rescue Special Compensation P&I Clause Salvage Control Unit (UK) Special Drawing Rights reports of positions of ships Admiral Danish Fleet (Søværnets Operative Kommando) International Convention for the Safety of Life at Sea State On-Scene Co-ordinator (US) Secretary of State’s Representative for Maritime Salvage and Intervention (UK) Shoreline Response Centre site of special scientiﬁc interest ship-to-ship trafﬁc separation scheme United Kingdom United States United States Coast Guard Union of Soviet Socialist Republics voyage data recorders

xviii VHFO VTS WA WMU WWW

Abbreviations very heavy fuel oil vessel trafﬁc service Western Australia World Maritime University World Wide Web

Chapter 1 Characterising the Problem of Places of Refuge for Ships Aldo Chircop, Olof Linden, Detlef Nielsen* THE PROBLEM This book concerns the regime and practice of the granting of refuge in a port or other safe haven, i.e., a place of refuge, to a ship that is in need of assistance. A ship may need assistance in various situations, and sometimes that assistance may be provided to the ship while it is at sea, such as when a seriously ill or injured seafarer on-board needs to be airlifted to receive medical treatment in a hospital. Occasionally, there are situations where the safety of the ship itself is at stake as a result of stress of weather, force majeure or an urgent necessity. Perhaps the ship has received salvage assistance, and the salvor is instructed and obligated to take the stricken ship to a safe place. In such situations it is imperative for the ship to seek and enter the closest safe haven. When a ship seeks refuge, in all cases it will be for exceptional reasons in exceptional situations. The place of refuge is not normally the intended destination of the ship. * The authors are grateful to Robert Bauchspies (Head of Information Services), Cecilia Denne (Library Assistant) and Susan Wangeci-Eklöw (Assistant Librarian) at the World Maritime University, for their assistance in securing documentation and bibliographic data.

1 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 1-31. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

2

Chapter 1

Every day thousands of ships ply the world’s oceans and seas to service global trade, and overwhelmingly without incident. Countless more ships engage in non-trading activities, such as tourism, recreation, offshore oil and gas, ﬁshing, aquaculture and military exercises, also without incident. Marine navigation involves various perils, not least of which are the possibility of bad weather and rough seas and the consequent stresses experienced by the ship’s hull, and occasionally security risks such as those posed by modern-day pirates, thieves and terrorists. For most ships, however, navigating in bad weather is part of the trade, and when the ship is seaworthy, has a competent master and crew, and is sailed competently, the voyage is completed and the next maritime adventure follows. But not everything goes well all the time, even for the best of ships. There is always a risk, in most cases a low risk, that a well-constructed, crewed and operated ship will encounter some calamity at sea that might unexpectedly interrupt its voyage. Simple exposure to the perils of the sea, in particular bad weather, has frequently interrupted and will continue to interrupt maritime adventures. A ship may contain a defect in its hull, machinery or equipment that, assisted by bad weather, may contribute to a casualty. Witness the ‘Amoco Cadiz’ and the ‘Derbyshire’, both of which were only four years old at the time of their respective casualties. In 1978 the ‘Amoco Cadiz’, a modern oil tanker with a competent crew, suffered general steering gear loss as a result of a single failure of a major pipe joint that led to loss of hydraulic ﬂuid.1 The ship eventually grounded on the coast of Normandy and caused catastrophic oil pollution. The ‘Derbyshire’, an oil/bulk/ore carrier (O.B.O.), was a modern and wellcrewed ship. In 1980 it was lost with all life on board during a typhoon 350 miles southeast of Japan. It was the largest British ship ever lost at sea. Following a re-opened investigation, it was concluded that ‘the initiating cause for the loss was the destruction of some or all of the ventilators and air pipes on the foredeck by sustained green water loading’, followed by ﬂooding through hatch covers that gave way.2 Thus even the best of ships, under certain conditions at sea, may still experience a calamity that places the vessel, crew, cargo

1

Republic of Liberia, Decision of the Commissioner of Maritime Affairs, R.L. and Final and Interim reports of the Formal Investigation by the Marine Board of Investigation in the Matter of the Loss by Grounding of the VLCC Amoco Cadiz O.N. 4773, 16 March 1978 (Monrovia, Bureau of Maritime Affairs, 30 December 1980), at 56–57. The ‘Amoco Cadiz’ was constructed four years before the casualty and was considered as ‘representative of the best-manned, best-equipped and best-operated tankers of the world . . .’ Ibid., D-1. 2 U.K., High Court of Justice (Admiralty Court), Report of the Re-opened Formal Investigation into the Loss of the MV Derbyshire, by Justice Colman (Norwich, HMSO, 2000), at 15–16 and 137–143.

Characterising the Problem of Places of Refuge for Ships

3

and marine environment at risk. Some ships are known to have a higher casualty rate than others, such as bulk carrier and general cargo vessels.3 Contrary to popular perception, it is not just bad ships that require assistance through the provision of shelter. The ‘Magnitude’, which was allowed refuge in Milford Haven4 and the ‘Ever Decent’, permitted refuge in Zeebrugge,5 are cases in point. There are numerous examples of successful handling of ships in distress, including gas carriers.6 However, it is also true that there is a greater risk with older and less-maintained ships, with such ships being more prone to equipment and structural failures. Again, the critical point to be made here is that no ship is exempt from potentially needing a place of refuge. When a place of refuge is requested by a ship in need of assistance, irrespective of its age or condition, the expected humanitarian response of the coastal state may have to be balanced against its perception of the threat posed by the ship to its coastal, environmental and socio-economic interests. Traditionally and over a long period of time, the international maritime community strongly supported an unwritten norm concerning the provision of assistance to ships in distress. For ease of reference, this norm will be referred

3

R. Curry, “Merchant Ship Losses 1934–1993: An Overview”, 138 Transactions of the Royal Institute of Naval Architects (Part A), 1995, at 1–20, in particular Tables 4A – 4D. See also J. R. Spouge, “The Safety of General Cargo Ships”, 145 International Journal of Maritime Engineering (Part A) 2003, 29. 4 In 2002, the ten-year old ‘Magnitude’ sprang a leak and spilled a small amount of oil. Following the incident the harbour master of Milford Haven was instructed to refuse entry to ships in similar situations in the future. In the future, SOSREP, rather than the port, will decide on entry. See UK Maritime and Coastguard Agency, “Places of Refuge Case Studies”, <www.mcga.gov.uk/c4mca/mcga-environmental/mcga-dops_cp_environmental-counter-pollution/mcga-dops_cp_sosrep_role/internet-_dops-_counterpollutionplaces_of_refuge__/internet__dops_counterpollution_places_of_refuge__case_studies__. htm>, 21 March 2005. 5 In 1999 the two-year old ‘Ever Decent’ was involved in a collision with the ‘Norwegian Dream’ and suffered a ﬁre on board. Bahamas Maritime Authority, Report of the Investigation into the Collision between the Passenger Vessel “Norwegian Dream” and the Container Vessel “Ever Decent” in the Approaches to the Dover Strait at 0055 on 24 August 1999 (London, Bahamas Maritime Authority, 12 May 2000). The ﬁre was put out and it proceeded to Zeebrugge as a port of refuge. See UK Maritime and Coastguard Agency, Press Release No. 334/99, 30 August 1999, “Fire out on ‘Ever Decent’ as She Prepares to Move to Zeebrugge”, <www.mcga.gov.uk/c4mca/mcgadops_pr_newsroom-press-releases-release.htm?mcga_news_id=1352&month=8&year= 1999>, 21 March 2005. 6 For example, see Society of International Gas Tanker & Terminal Operators Ltd., Safe Havens for Disabled Gas Carriers: An Information Paper for Those Seeking a Safe Haven and Those Who May be Asked to Provide It, 3rd edition (London, SIGTTO, February 2003) (hereafter SIGTTO), 9 et seq.

4

Chapter 1

to as the refuge custom. The expectations consist of a complementary right of the ship and crew to self-preservation and a responsibility on the part of coastal authorities to assist them. The two expectations form the core of a customary norm, i.e., an unwritten law, but law nonetheless because many states over a long period of time have considered the right and duty as having juridical value. The refuge custom is very old; historical evidence shows that the custom has persisted over a long period of time, through peaceful and belligerent times. Whether the decision-maker is a national maritime administration or a port authority, the duty boils down to a legal obligation of the state. Historically, not only was the ship in distress entitled to enter safe waters: it also enjoyed certain privileges based on the fact that the ship was not within the jurisdiction of the place of refuge voluntarily. Thus an exemption from customs charges, as long as the ship did not unload the cargo to trade in the place of refuge, was and continues to be a common practice. The ship was entitled to repair and re-supply at normal market prices. The local authorities could not exploit the situation of the ship in distress, but rather had to offer protection. Thus the ship in distress, its crew and passengers were provided with active assistance by coastal authorities, and in case the ship wrecked on the shore of that state, local authorities were duty-bound to assist the crew and passengers and to protect the wrecked property. The custom was not limited to commercial vessels; state practice shows that many states observed the custom in relation to warships and ﬁshing vessels. From a legal perspective, the custom developed across different branches or ﬁelds of international and domestic law, most notably humanitarian law, trade law, law of the sea (public law), maritime law (private law), and law of armed conﬂict and neutrality. In more recent times, the custom has also interacted with speciﬁc principles of general international law, international environmental law and the law of the sea, such as the principles of protection, polluter pays and innocent passage. In short, at least until very recently, if not to date, there has been a welldeveloped and widely practised custom to assist ships in distress, including by providing a place of refuge. Incidents since the 1970s, and most especially between 1999 and 2002, have called into question the extent of the right of a ship in distress to seek a refuge, and the concurrent responsibility of the coastal state to accept that request and provide whatever assistance the ship might need.7 In 1978 the ‘Christos Bitas’ was refused refuge by the UK and eventu-

7

For an assembly of instances of refuge situations, see the following: Z. Oya Özçayir, “Ports of Refuge”, 9 Journal of International Maritime Law, 2003, 486 at 492 et seq; R. Shaw, “Places of Refuge: International in the Making?” 9 Journal of International Maritime Law, 2003, 159; G. Kasoulides, “Vessels in Distress: ‘Safe Havens’ for Crippled Tankers”, 11 Marine Policy, 1987, 184.

Characterising the Problem of Places of Refuge for Ships

5

ally had to be scuttled.8 In 1981 the ‘Eastern Mariner I’ was carrying a cargo of fertilizer when it ran aground on a reef off Bermuda. It was ordered to depart while it was still taking on water, was towed out to sea by government-chartered tugs and sank.9 In 1999, several Mediterranean states refused refuge to the ‘Castor’, an oil tanker carrying a cargo of 29,500 tonnes of unleaded gasoline from Romania to Nigeria.10 The ship developed a crack in its hull and was receiving salvage assistance. For over a month the salvors could not ﬁnd a place of safety for the ship to undertake temporary operations.11 In 1999, the ‘Erika’ broke up, sank and caused massive oil pollution in the Bay of Biscay. An old ship battling bad weather, ‘Erika’ was refused refuge by France.12 Reminiscent of the ‘Eastern Mariner I’, in 2002 the ‘Prestige’, a 24-year-old tanker, was similarly refused refuge, this time by Spain, and was ordered out at sea in very rough seas, eventually sank, and caused pollution on the shores of the refusing and neighbouring states.13 The granting of refuge does not always

8 R. B. Clarke, The Waters Around the British Isles: Their Conﬂicting Uses (Oxford, Clarendon, 1987), 186–195. 9 The threat posed by the ‘Eastern Mariner’ was 10,000 tons of fertilizer that would have affected an area of six square miles in terms of eutrophication. The ensuing algae would have devastated a coral reef. There was the belief that there was a real probability of the ship sinking in Bermudan waters. It eventually sank in 5,000 feet deep water. Bermuda Biological Station for Research, The First Century (Bermuda, The Bermuda Biological Station for Research, Inc., 2003), 92. 10 G. A. Tsavliris, “The Castor Case: The Quest for Shelter,” (Paper presented at Port of Refuge, International Union of Marine Insurance (IUMI) Conference, Genoa, Italy, 16–19 September 2001), <www.iumi.com/Conferences/2001_genoa/Stampa/Tsavliris. rtf>, 21 April 2005. 11 A. Chircop, “Ships in Distress, Environmental Threats to Coastal States, and Places of Refuge: New Directions for an Ancien Regime?” 33(2) Ocean Development and International Law, 2002, 207 at 208. 12 The casualty investigation reported on the bad state of this ship as possible causes for the loss, including corrosion, cracking, local failure, vulnerabilities in the design, prevailing sea conditions, bad quality of repairs, and management failure to address areas of corrosion and to monitor the repairs. Malta Maritime Authority, Report of the Investigation into the Loss of the Motor Tanker Erika on Sunday 12th December 1999 (Valletta, Malta Maritime Authority, Merchant Shipping Directorate, 2000), Section 15: Findings. 13 The casualty investigation report stated: ‘The provision of a place of refuge could well have resulted in a much more favourable outcome and prevented the subsequent large scale pollution of a long stretch of coastline’. Bahamas Maritime Authority, Report of the Investigation into the Loss of the Bahamian Registered Tanker “Prestige” off the Northwest Coast of Spain on 19 November 2002 (London, Bahamas Maritime Authority, 2002), 81.

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avoid a problem. The bulk ore carrier ‘Kowloon Bridge’ was permitted shelter in Bantry Bay, but still wrecked in West Cork. The ensuing spill caused damage to ﬁsheries and tourism.14 However, a ship in a place of safety can be better assisted to avoid or minimise a potential loss and its catastrophic consequences. Unfortunately, a relative few, but very well publicised incidents and consequent losses to the environment and local economies, have overshadowed the true nature and extent of the practice behind the custom. Some of these incidents also raised serious concerns on the wisdom and reasonableness of denying refuge at an early stage when the situation on board the ship could possibly have been stabilised. Instead, the ensuing casualties have led to some unilateral regulatory initiatives that seem to have been conceived more in political terms than as well-rationalised marine management responses to modern needs. Much of the modern day discourse on the subject of places of refuge for ships is polemical, and probably undesirably so.

TERMINOLOGY The refuge custom has a vocabulary and phraseology rich in synonyms and imagery. The notion of a safe place for ships, seafarers and travellers is captured by several terms: haven, asylum, harbour, port of refuge, shelter, place of safety, place of refuge. Perhaps the oldest of these is the concept of ‘haven’, which can be traced to Old English and possibly the Germanic languages, which was a general term for shelter in a maritime context. In the Oxford English Dictionary one of its many uses is for ‘a recess or inlet of the sea, or the mouth of a river, affording good anchorage and a safe station for ships; a harbour, port’.15 In another sense, it is ‘a place of shelter, safety, or retreat; a refuge; an asylum’.16 The critical idea behind haven is shelter in both spatial and functional senses. The meaning of asylum as a place for mentally ill patients is just over a hundred years old.17 Earlier, asylum meant a refuge, and in this sense it was a term that was used in old treaties conferring a right to refuge and consequential rights of asylum.18 The concept of ‘harbour’ connotes something more than a ‘port’. Also appearing in Old English, ‘port’ has always meant a place ships normally entered to trade and a place for the normal operations of a ship (e.g., to load or unload cargo, repair and re-supply) and also a

14

Kasoulides, supra note 7. The Compact Oxford English Dictionary, (2nd ed., 1991) (hereafter O.E.D.), s.v. “haven”. 16 Ibid. 17 Ibid. s.v. “asylum”. 18 See Chapter 8. 15

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place of shelter for ships.19 ‘Harbour’, on the other hand, may not have originated in a maritime setting and connoted ideas of shelter, lodging and entertainment, i.e., a stopping point (e.g., resting place, inn, place of refuge for a traveller).20 It connoted a sense of protection and hospitality. Today port and harbour are interchangeable. Thus for seafarers, coastal and inshore waters may have marked the beginning and end of a voyage, but also places of safety which they could take refuge in to escape the perils of the sea, in particular stress of weather, pirates and the enemy. ‘Refuge’, which is probably of Latin origin (fugere, meaning to ﬂee, with the preﬁx re meaning back, refugium), meant a retreat, and connoted shelter and protection from danger in a speciﬁc place.21 Thus safe haven, port of refuge, place of refuge and indeed harbour, all connoted shelter for ships from the sea. It should be remembered that for centuries, navigation tended to be coastal and thus protective coastal features bore particular signiﬁcance to seafarers. Even with nautical technological advances that permitted offshore and transoceanic navigation with bigger and safer ships, sheltered coastal waters remained the ultimate places of shelter, perhaps well captured by the saying of ‘any port in a storm’. The ‘port of refuge’ has a particular meaning in general average as an unintended destination resulting from the general average act, i.e., the decision of the master to voluntarily undertake an unforeseen sacriﬁce or expenditure to preserve the interests of the maritime adventure.22 A more generic term, ‘shelter’, when used either as a noun or as a verb in a maritime setting, simply connotes a protected place that can be resorted to temporarily and the act of moving to such place.23 A ‘place of safety’ connotes more and is particularly relevant in a salvage situation, where the taking of a salved ship to a safe place and re-delivery to its owner’s possession signiﬁes completion of the salvage contract.24 Place of safety is also used

19

O.E.D., supra note 15, s.v. “port”. Ibid. s.v. “harbour”. 21 Ibid. s.v. “refuge”. 22 The York-Antwerp Rules 2004, adopted by the Comité Maritime International, Vancouver, 31 May–4June 2004, <www.comitemaritime.org/cmidocs/yar.html>, 21 March 2004, Rules A.1 and X. 23 O.E.D., supra note 15, s.v. “shelter”. 24 Salvage involves the bringing of the salved res, in this case the ship, to a place of safety. John Reeder, ed., Brice on Maritime Law of Salvage, 4th edition (London, Sweet & Maxwell, 2003), 1. For the salvor to earn a salvage reward, ‘it is necessary to bring the property from danger to a place of safety. Under Lloyd’s Form also, no reward is earned unless the property is brought to a place of safety; but the salvor is not free to break off his engagement and must use his best endeavours to reach such a place’. F. D. Rose, Kennedy and Rose: The Law of Salvage, 6th edition (London, Sweet & Maxwell, 2002), 487–488. 20

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to refer to the place where survivors from a ship assisting a ship in distress are disembarked.25 ‘Place of refuge’ was also occasionally used in the past, but since discussions on the subject commenced in the International Maritime Organization (IMO) in 2001 it has become the principal term of art in the discourse.26 Moving from the spatial vocabulary of the custom, there is then terminology related to the rationale for the right of refuge. The French concept of “force majeure” is probably the one that best captures the reason why a ship needs a place of refuge. This refers to an external real and irresistible force that results in uncontrollable events. Force majeure is frequently used in English text because it is not easily captured in English text. The closest in English is ‘Act of God’, but the secular force majeure has a wider scope of meaning.27 There is also the English term ‘necessity’ in a refuge context, when a set of conditions materialise into a situation that leaves no choice other than a singularly prudent course of action – to seek a safe place without loss of time. Sir William Scott (Lord Stowell) wrote of ‘grave necessity’ and ‘the danger must be such as to cause apprehension in the mind of an honest and ﬁrm man’, leading to a ‘moral necessity’.28 ‘Urgent necessity’ has also been used. The necessity could be the result of an accident. ‘Danger of the sea’, which in marine insurance law is better known as peril of the sea, has been sufﬁcient justiﬁcation. In refuge practice, such dangers have included encounters with the enemy, pirates and stress of weather. The last of these, ‘stress of weather’, is one of the most enduring in the vocabulary of the refuge custom. This concept refers to the extent of the danger posed by the natural elements relative to the ship concerned, so that in effect the ship is driven in or forced to put in. Again, Lord Stowell stated that this is not a matter of ‘a little bad weather, or in consequence of foul winds’;29 rather, stress of weather is such as to compel a prudent mariner to seek safety. Then there is the condition and the resulting situation of the ship itself. More recently, the IMO Guidelines on Places of Refuge for Ships in Need of Assistance have used a generic phrase, ‘ships in need of assistance’, that is meant to capture ‘a ship in a situation, apart from one requiring rescue of per-

25

For the purposes of SOLAS and SAR Conventions, see SOLAS Amendment, infra note 44 and SAR Amendment, infra note 66. 26 IMO, “Report of the Maritime Safety Committee on its Seventy-Fourth Session”, MSC 74/24, 13 June 2001, 20–22. 27 The United States Oil Pollution Act of 1990 deﬁnes ‘Act of God’ as ‘unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character the effects of which could not have been prevented or avoided by the exercise of due care or foresight’; 40 U.S.C. 2701. 28 Edwards 135; 165 Reprints 1058. 29 Ibid.

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sons on board, that could give rise to loss of the vessel or an environmental or navigational hazard’.30 When a ship is ‘in distress’ something more is connoted, in the form of a situation of imminent danger to the ship and its crew.31 From past incidents, a ship in distress may have lost all engine power in rough seas or close to a coast, or it may have experienced severe structural failure possibly resulting in cracks in its hull, or the crew have been exposed to extreme physical dangers. There is no limit to the possibilities. A ship in distress is one that needs immediate help. In the past ‘pursuit by pirates or enemies’ was also common terminology in bilateral agreements. The verbs used evidence compulsion. Thus, in several modern bilateral treaties of commerce and navigation, the verb or expression used are ‘compelled’, ‘forced putting in’ or ‘forced in’. Involuntariness is an important element of this custom because it is precisely compulsion that justiﬁes the exceptions, exemptions, privileges and problems discussed in this book. Historically, the treatment to be provided to ships in distress at the place of refuge was described by the following phrases: ‘kindness and humanity’, ‘humanity and civility’, ‘protection and assistance of friends’, ‘friendly treatment and assistance’, ‘all favour and protection’ and variations thereon. This is the behavioural standard expected of those that host ships in distress, who are then further expected to provide ‘advantages and immunities’ or ‘exemptions’. In contrast, and although not technical terms forming part of the language of the refuge custom, the self-explanatory ideas expressed by the expressions ‘not-in-my-backyard’ or ‘not-in-my-front-pond’ have been used frequently by the media to capture a contemporary public sentiment towards ships in distress.

THE ISSUES Humanitarian Assistance to Seafarers Probably the least controversial aspect of the problem of ships in need of assistance is the crew’s right to self-preservation and the duty of coastal states to provide humanitarian assistance as and when needed. This is supported implicitly or explicitly in a number of conventions, in particular the United Nations

30 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/Res.949, 5 March 2004. 31 This was the deﬁnition used by the legal adviser of the Dutch Navy in the context of the ‘Briz’ and ‘Sormovsky 7’ incidents in 1990. A. Verheul, “Netherlands state practice on access to ports: the ‘Briz’ and ‘Sormovsky 7’ cases” NILOS Newsletter, No. 4 (July 1990).

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Convention on the Law of the Sea, 1982 (LOS Convention)32 and the International Convention on Maritime Search and Rescue, 1979 (SAR Convention).33 The International Convention on the Safety of Life at Sea, 1974 (SOLAS Convention), on the other hand, establishes the duty of other ships to come to the assistance of ships in distress and in addition requires coastal states to observe their rescue obligations towards crew on board ships.34 This obligation to render assistance is of rather long standing, since it was already mentioned in the Convention for the Uniﬁcation of Certain Rules relating to Assistance and Salvage at Sea, 191035 and is still to be found in the International Convention on Salvage, 1989.36 Other international instruments, such as the International Convention for the Prevention of Pollution from Ships, 1973/78 (MARPOL 73/78)37 and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972/1996 (London Convention)38 create exceptions supporting the taking of extraordinary measures not otherwise permissible in situations other than force majeure. Even the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (Intervention Convention), as amended by the

32

United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN/Doc. A/CONF.62/122, 7 October 1982 (hereafter LOS Convention), Arts. 18(2) and 39(1)(c ). 33 International Convention on Maritime Search and Rescue, London, 27 April 1979, 405 U.N.T.S. 97, Chap. 2, Art. 2.1.1 requires states parties to ‘ensure that assistance is rendered to any person in distress at sea’. The convention also calls for the establishment of search and rescue centres and demands co-operation between states in case the search and rescue operation has to enter the territorial sea of neighbouring states, which should normally allow such entry. 34 International Convention for the Safety of Life at Sea, 1974, London, 1 November 1974, 1184 U.N.T.S. 2, as amended (hereafter SOLAS), respectively Chap. V, Reg. 33 and Chap. V, Reg. 7(1). 35 International Convention for the Uniﬁcation of Certain Rules of Law relating to Assistance and Salvage at Sea, Brussels, 23 September 1910, 103 U.K.T.S. 441, Art. 11 imposes an obligation to render assistance. 36 International Convention on Salvage, 1989, London, 28 April 1989, U.K.T.S. 1996, No. 93. 37 International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, 1340 U.N.T.S. 184, as amended by Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978, 1340 U.N.T.S. 61 (hereafter MARPOL), Annex 1, Reg. 11. 38 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 29 December 1972, 1046 U.N.T.S. 120 as amended by the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 7 November 1996, 36 I.L.M. 1 (hereafter London Convention), Art. V(1).

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1973 protocol to include substances other than oil, imposes on states, exercising their right to an intervention as deﬁned in the convention, the obligation to ‘afford persons in distress any assistance of which they may stand in need, and in appropriate cases to facilitate the repatriation of ships crews, and to raise no obstacle thereto’.39 Potentially related, but perhaps less widely recognised, is the consideration of the safety of those persons that may be responding to the call for assistance from a ship in distress, such as the salvor’s crew and other personnel. It is clear that salvage almost always involves some danger for both those on board the ship in distress and those persons on board other ships assisting the ship in danger.

Potential Criminalisation of Seafarers In contradistinction to the humanitarian response, the problems for rescued seafarers are potentially not over after the rescue. As outlined above, seafarers can be quite conﬁdent that rescue efforts will be made in cases of ships in distress, provided the necessary shore infrastructure is in place. But the traditional wisdom that preserving the integrity of the ship, i.e., keeping the ship aﬂoat as long as possible, even if this might involve discharge of cargo, no longer seems to hold true. In fact the current perception is that seafarers are increasingly facing criminal charges once they have been rescued. An illustration of this perception is a recent article in the newsletter of a leading mutual protection and indemnity association, which was entitled: ‘The Criminalisation of Seafarers – from Master Mariner to Master Criminal’.40 Seafarers are thus increasingly concerned that, following a ship in distress situation, with crew members safely ashore, they might actually face being thrown into jail, as witnessed by the treatment of the masters of both the ‘Erika’ and ‘Prestige’ respectively. 41 Such treatment is very different from the traditional perception of a ship master’s duty:

39 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, 29 November 1969, 970 U.N.T.S. 211, Art. III(e); Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, 1973, London, 2 November 1973, 1313 U.N.T.S. 3. 40 GARD News, No. 177 (February/April 2005), 22. 41 Capt. K. Mathur, Master of the ‘Erika’, tried to stabilise his ship by ﬂooding ballast water tanks. When this proved unsuccessful, he and his crew were rescued by French helicopters and he was kept in detention for a prolonged period. Capt. A. Mangouras, Master of the Prestige, was accused of disobeying orders from the Spanish authorities and led away from the rescue helicopter. He was reportedly subjected to prolonged interrogation directly after the rescue, kept in a high security prison for several months and only released on bail after a bond of Euro 3 million was posted by the shipowners

12

Chapter 1 The master is charged with the safety of the ship and cargo; in his hands are the lives of passengers and crew. His position demands the exercise of all reasonable care and skill in navigation, of at least ordinary care and ability in the transaction of business connected with the ship, and constant use of patience and consideration in his dealings with those under his command or entrusted to his care.42

Seafarers, as well as the shipping industry at large, are increasingly concerned with recent legislative initiatives aimed at creating tougher offences for vesselsource pollution. It is of course understandable that criminal behaviour resulting in marine pollution should be punished and that coastal states have every right to exercise their jurisdiction. However, this trend does ignore the fact that international conventions such as MARPOL 73/78 do exempt discharges of oil into the sea if necessary for the purpose of securing the safety of the ship or saving lives at sea, unless the owner or master acted with intent or recklessness and with knowledge that damage would probably result.43 Moreover, in response and in an effort to clarify the situation, the IMO’s Maritime Safety Committee (MSC) has proposed to amend the SOLAS Convention by re-wording Regulation 34 of Chapter V. The new Regulation 34–1 would stress the master’s discretionary rights (vis-à-vis the owner, charterer or company operating the ship or any other person) and emphasises that he execute a decision which in his ‘professional judgement is necessary for safety of life at sea and protection of the marine environment’.44 The current text has ‘safe navigation’ instead of ‘safety of life at sea’. But important questions remain unanswered: Must the master only take decisions that protect life and the environment? What are the consequences if the decision taken saves life, but damages the environment? Can he/she still take such a decision and continue to enjoy legal protection? The European Parliament has recently endorsed a ParliamentCouncil common position on a directive concerning the introduction of criminal offences for vessel-source pollution and applying to seafarers. This legislative initiative is likely to further constrain what is already a difﬁcult decision-making process for the master.45

and their P&I club. He was released to his home country Greece only in March 2005, and is still on bail at the time of writing. 42 H. Holman, A Handy Book for Ship Owners and Masters 16th edition (London, UK P&I Club, 1964), 5, as quoted in E. Gold, “From Privilege to Peril,” 3 WMU Journal of Maritime Affairs, No. 1, 2004, 51 at 57. 43 MARPOL, supra note 37, Annex 1, Reg. 11. 44 Report of the Maritime Safety Committee on its Seventy-Eighth Session, IMO Doc. MSC 78/26/Add.1, 4 June 2004, Annex 3 – Resolution MSC.153(78) adopted on 20 May 2004: Adoption of Amendments to the International Convention for the Safety of Life at Sea, 1974 as amended (hereafter SOLAS Amendment), at 4. 45 See “Recommendation for Second Reading on the Council common position of the European Parliament and of the Council on ship-source pollution and on the introduc-

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Thus there is a potential conﬂict between the principle of humanitarian assistance on the one hand, and the principle of criminalisation of rescued seafarers under the polluter pays principle on the other. This is particularly the case if a coastal state applies strict liability offences to seafarers.

Protection of the Coastal and Marine Environment Since its emergence in the 19th century, environment conservation concern has focused on terrestrial ecosystems. Terrestrial protected areas were already being established in the 1870s.46 The concern over marine areas and their protection and conservation needs is surprisingly recent. Although a few coastalmarine areas were protected in the early 20th century,47 it was not until the 1990s that coastal states around the world started to set aside signiﬁcant areas of marine environment for protection.48 The very idea that a marine ecosystem is affected by human activity, such as pollution, is relatively recent. For example, sewage treatment plant construction started in the 1960s and at that time such plants were aimed exclusively at protecting inland waters. Decades would pass before their construction was also aimed at the protection of coastal waters. It was not until 1976 when the ﬁrst international meeting was held to review progress with marine protected areas (MPAs) and develop approaches

tion of sanctions for infringements” (11964/3/2004, C6 –0157/2004, 2003/0037(COD)), European Parliament, Doc. Final A6–0015/2005, 31 January 2005. See also the following: “Cesma Chief Warns Barrot of New Crisis”, Lloyd’s List (21 March 2005); “EU Spill Criminalisation Plan Flawed Says Law Centre Director”, Lloyd’s List (12 April 2005). 46 One of the very ﬁrst terrestrial national parks was the Yellowstone National Park established in the United States in 1860. A few years later the Stora Karlsö in Sweden was established as a protected area. However, despite the fact that Stora Karlsö is an island and was protected for its large colonies of seabirds, in reality only the terrestrial parts were protected. 47 The world’s ﬁrst ofﬁcially proclaimed MPA, which included a substantial area of coastal waters, was established in 1925 in Glacier Bay, Alaska. The area included coastal waters of importance to whale and seal populations. Ten years later, the ﬁrst primarily sub-tidal MPA was established at Fort Jefferson, Florida, covering the coral reefs of the Dry Tortugas. See P. J. S. Jones, “Marine Protected Areas Strategies: Issues, Divergences and Search for Middle Ground”, 11 Reviews in Fish Biology and Fisheries, 2002, 197. 48 However, the ﬁrst MPA that was established for marine life in general was not established until 1959, with the designation of the Exuma Cays Land-and-Sea Park. See G. Carleton Ray, “Coastal-Marine Protected Areas: Agonies of Choice”, 9 Aquatic Conservation: Marine Freshwater Ecosystems, 1999, 607.

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for selecting, promoting and managing such sites.49 The designation of MPAs has proceeded in a relatively slow manner, with only 125 being recognised by 197450 and 1,306 by 1994.51 The realisation that oil spills from ships could constitute an environmental problem occurred with the ‘Torrey Canyon’ casualty in 1967. It was primarily the sight of oiled seabirds that drove this public concern and that triggered investigation into other less obvious signs of environmental damage. Accordingly, concern over the state of the marine environment and the conservation of marine species and ecosystems should be regarded as a very recent phenomenon. This does not suggest that the concern is unwarranted or unnecessary. It is now well-known that many coastal waters, enclosed seas and even large areas of open ocean are adversely affected by human activities.52 The marine environment functions as a sink for pollution from land-based, riverine and airborne sources and pathways, as well as from vessels and other craft. The degradation of shallow coastal areas and enclosed marginal seas is extensive and in many respects has gone much further than on land. Fishing, in particular overﬁshing and the use of destructive ﬁshing gear and related practices, has also had a dramatic negative impact on the marine environment through the depletion and degradation of marine ecosystems.53 Much of the problem is related to the fact that humans are terrestrial animals, with sensory capabilities adapted mostly for use in a dry environment. The study of underwater phenomena requires instrumentation between the user and object of study. Dramatic ecosystem destruction can continue undetected, and when detected generates relatively little debate. On the other hand, the clear-cutting of a forest or the transfer of valuable land into a garbage dump are more obviously visible and consequently more easily declared matters of concern. Already in 1986 Ray called for the need to ‘think wet’ and accordingly expand our perspectives to include the oceans as the largest surface area of the planet.54

49 IUCN, Proceedings of an International Conference on Marine Parks and Reserves, 12–14 May 1976, Tokyo, Japan, IUCN Publications Series No. 37 (Gland, IUCN, 1976). 50 M. I. Björklund, “Achievements in Marine Conservation: International Marine Parks,” 1 Environmental Conservation, 1974, 205. 51 G. Kelleher, C. Bleakley, and S. Wells, Priority Areas for a Global Representative System of Marine Protected Areas (Washington, D.C., World Bank Environmental Department, 1995), vol. 1, 13. 52 GESAMP and Advisory Committee on Protection of the Sea, A Sea of Troubles (GESAMP Reports and Studies No. 70, 2001), 1–4. 53 Expert groups consider that on a global scale ﬁshing is the most environmentallydestructive human activity. Pollution is second to ﬁshing. See Global International Waters Assessment, GIWA Global Report (Nairobi, UNEP, in press in 2005). 54 G. C. Ray, “Conservation Concepts for the Seas and Coasts”, 13 Environmental Conservation, 1986, 95.

Characterising the Problem of Places of Refuge for Ships

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Naturally, vessel-source pollution is a high-priority issue in the debate regarding places of refuge for ships. The potential for an oil spill is a major concern, and all ships carry oil, either as fuel, or cargo, or both. Although the number of oil spills in the coastal and marine environment has decreased in recent times, particularly relative to the volume of ship trafﬁc, a spill is still a matter for great concern not only among conservation-minded persons and communities in affected areas, but also for the public at large. The fact that oil spills contaminate beaches and affect economic activities such as aquaculture, ﬁshing and tourism has also served to focus attention on the socio-economic dimension. From an environmental perspective, many other dangerous, hazardous and noxious substances are also transported in bulk, and are at least as important as crude and fuel oil. Chemicals for the petrochemical industry are examples of this. Waste oils are increasingly transported by sea over long distances. Many of these waste oils are contaminated and are potentially a greater environmental hazard than other oils. Coastal and marine environmental issues are increasingly addressed through an integrated planning and management approach, variously known as integrated coastal zone management (ICZM), integrated coastal management (ICM), integrated coastal and ocean management ICOM), among other terms.55 Cicin-Sain and Knecht write that this approach ‘implies a conscious management process that acknowledges the interrelationships among most coastal and ocean uses and the environments they potentially affect’.56 It provides a process for conﬂict avoidance, management and resolution among users of coastal and marine areas. Despite the advocacy of integration, it is notable that shipping and the maritime sector in general have not played a major role in ICZM discourse and practice. Shipping continues to be managed on a dominantly sectoral basis. In contrast, other important users of coastal and marine areas, such as tourism and ﬁsheries, are much more actively involved. Places of refuge for ships raise many other issues that are not exclusively maritime-qua-shipping in interest and consequently affect other users of the coastal zone. To date, the modern discussion of the problem of places of refuge has been couched mostly in maritime terms and among maritime actors, whether in the context of IMO discussion, or action at the regional or national levels. Perhaps the time has come to widen the discourse and practice in the larger ICZM context. There must be concern that, no matter the extent of the threat of shipping to the marine environment, when viewed from a holistic perspective, shipping adds to the cumulative human impact on the coastal and marine environment. The fact that coastal areas in much of the world are under increasing pressure from

55

See Biliana Cicin-Sain and Robert W. Knecht, Integrated Coastal and Ocean Management: Concepts and Practices (Washington, D.C., Island Press, 1998), 11. 56 Ibid., 1.

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development, there should be a closer interaction between the management of shipping and the maritime sector on the one hand, and the other users of the coastal and marine environment. Hence the call for integrated planning and management.

Protection of Maritime Property Historically in the refuge custom, the saving of the ship and cargo qua property accompanied the humanitarian dimension of saving lives. The saving of the ship entailed the saving of the lives and property on board. As will be seen in the chapters on custom and salvage, before salvage became a separate institution of maritime law, it was intrinsically connected with the general notion of assistance to be provided to a ship or the wreck thereof. The public and private law on this were intertwined for a long time before the public law obligation and the private maritime law institutions separated. Today the saving and protection of property remains essential to salvage, because without salved property there is no success, and without success there is no normal salvage reward. Similarly, in general average, the expenditure or sacriﬁce voluntarily incurred by the master in relation to the ship and cargo would be shared among those that beneﬁt from the act in case of success. Success means that there must be completion of the maritime adventure, at least in part, and that entails saving of proprietary and commercial interests. In a contemporary context, some coastal states have prioritised the humanitarian and environmental protection responsibilities over and above the saving of property. It has been held that once the crew of a ship are rescued, there is no continuing duty towards the ship and cargo. This fragmented approach to what is an integrated problem is at the heart of the discourse on the granting of refuge to ships in distress.

Balancing the Coastal State’s Rights and Responsibilities As noted earlier, there have been incidents where principles that are pertinent to places of refuge for ships appeared to conﬂict. The concerns raised by the ‘Christos Bitas’ (protective principle, refusal of refuge and eventual dumping), ‘Castor’ (protective principle and successive refusals of refuge) and ‘Prestige’ (protective principle, refusal of refuge and pollution affecting the refusing and neighbouring states) are cases in point. In these and other instances, and where a loss occurred, the refusal of refuge per se may not have been causative of the loss, but it raised important questions as to the relationship between multiple coastal state rights and responsibilities, such as the provision of humanitarian assistance, protection of its interests, duties towards other states and protection of the marine environment.

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Basically, and as will be seen in various chapters in this book, when a ship in need of assistance requests entry into a place of refuge, there are a number of legal principles that bear on the request and should guide coastal state decisionmaking. Under certain circumstances, those principles are potentially competing with one another. Clearly, the coastal state will always retain a right of self-defence under the protective principle in international law. The LOS Convention and the Intervention Convention provide the coastal state with an active right to take steps that are reasonable and necessary against international shipping in relation to a maritime casualty in order to preserve its interests.57 At the same time, states have a general duty to protect and preserve the marine environment58 and a speciﬁc duty not to transfer directly or indirectly damage or hazards from one area to another.59 Indeed, if other states are or may be imminently affected, they should be notiﬁed immediately.60 There is a speciﬁc duty to prevent marine pollution from dumping that includes the deliberate disposal of ships although, as noted earlier, dumping may still be permissible in exceptional situations.61 At international law, rights are generally accompanied by counterpart duties, frequently towards other states. Accordingly, the exercise of a coastal state right must not be undertaken in such a manner as to constitute an abuse of rights, meaning the exercise of a right ‘in a way which affects the enjoyment by other states of their own rights or for an end different from that for which the right was created, to the injury of another state’.62 In more recent practice, some maritime administrations and port authorities are demanding the provision of security or other ﬁnancial guarantee to provide for compensation for damage or loss suffered as a result of the provision of

57 LOS Convention, supra note 32, Art. 221; Intervention Convention, supra note 39, Art. 1. 58 LOS Convention, ibid. Art. 194. 59 Ibid., Art. 195. 60 Ibid., Art. 198. 61 Ibid., Art. 1(5)(a)(ii) on the deﬁnition of dumping, and Arts. 210 and 216; see also the London Convention, supra note 38, Art. III(1)(a)(ii) on the deﬁnition and Arts. I and II on the general duty. Art. 4 provides that a ship may be dumped at sea if a prior permit is issued and it conforms to the requirements of the London Convention and national law implementing it. Art. V foresees the dumping of ships in situations of force majeure. 62 See A. Kiss, “Abuse of Rights”, in: Encyclopedia of Public International Law, vol. 1 (Amsterdam, Elsevier, 1992), 4. In the case of the 1990 ‘Briz’ and ‘Sormovsky 7’ incidents mentioned earlier, the potential issue of abuse of rights was reported by the Netherlands Institute for the Law of the Sea: ‘The government of the Netherlands seems to be aware (“opinio iuris”) that refusal to allow ships into the calmer waters of such military ports may under certain conditions amount to an “abus de droit,” for which it may well be held internationally responsible. Entry to such ports is therefore permitted under conditions of “zeenood” (distress)’. NILOS Newsletter, supra note 31.

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refuge to a ship in distress.63 Whereas many states are of the view that the current schemes for ﬁnancial compensation in the event of damage from pollution from oil or other substances are sufﬁcient, there are also states that are of a contrary view.64 Among the latter is Spain, which under a recent law requires a security and procedure for its payment that has been questioned by the maritime industry.65 Co-ordinating support measures between maritime administrations and port authorities is bound to be an area of uncertainty and could even be an area of conﬂict. Maritime administrations are conceivably aware of their obligations under international law and requesting them, inter alia, to render assistance to a ship and rescue persons on board. Port authorities, on the other hand, are bound to have a more local perspective, focussing on their national laws and obligations, rather than on international treaties. It is conceivable that new initiatives to make ports more environmentally friendly may encourage port authorities towards taking a negative stance when a ship in distress asks for help, rather than risking a case of pollution within the port limits. In some states, port authorities may have an absolute right of granting or denying entry, and this could only be overruled in certain circumstances. The MSC has proposed almost identically worded amendments to the SOLAS and the SAR conventions, requesting state parties to the conventions ‘to make the necessary arrangements in co-operation with other RCCs [Rescue Coordination Centres] to identify the most appropriate place(s) for disembarking persons found in distress at sea’.66 The amendments leave the responsibility

63 See E. Van Hooydonk, “Some Remarks on Financial securities Imposed by Public Authorities on Casualty Ships as a Condition for Entry into Ports”, in: M. Huybrechts, ed., Marine Insurance at the Turn of the Millenium, vol. 2 (Antwerp, Intersentia, 1999), 117–136. 64 Report of the Legal Committee Work of its Eighty-Sixth Session, IMO/LEG 86/15, 2 May 2003. The instruments concerned are: International Convention on Civil Liability for Oil Pollution Damage, London, 29 November 1969, 973 U.N.T.S. 3, as amended by the protocols of 1976 and 1992; International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, London, 18 December 1971, 1110 U.N.T.S. 57, as amended by the protocols of 1976, 1984, 1992 and 2003 (Supplementary Fund); Convention on Limitation of Liability for Maritime Claims, London, 19 November 1976, 1456 U.N.T.S. 221, as amended by the protocol of 1996; International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 2 May 1996, 35 I.L.M. 1406; International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, London, 27 March 2001, IMO Doc. LEG/CONF.12/19, 27 March 2001. The IMO is also developing a wreck removal convention, currently in an advanced draft stage. Draft Convention on Wreck Removal, IMO Doc. LEG 88/4, 16 February 2004. 65 See “Owners Question Viability of ‘Safe Haven’ Bonds”, Fairplay (17 June 2004), 4. 66 See MSC Resolution MSC.155(78) adopted on 20 May 2004, Amendments to the

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for deciding with state authorities, rather than with the RCCs, which are merely sub-departments of state authorities.67 Co-ordinating assistance matters might be even more complicated in states that have devolved powers to local or regional governments, as the pressure built up by media coverage might tempt decision-makers at the local level to focus only on the threat of pollution rather than on the possibility of avoiding a major disaster by limiting the potential spill to a smaller and controllable area.

The Media and the Drive for Public Information The ever-growing media industry is fast in responding to the general public’s need to be informed, which often translates into a ‘right-to-know’. In its search for stories that the public wants to read, see or hear about, the information and broadcasting media have often focussed on particular news items. Unfortunately, those news items do not extend to the normal day-to-day operational routines in shipping because they tend to be uneventful and do not therefore attract public attention. But when there is an event that is not consistent with the norm, for example an oil tanker or large vessel in distress, that event is potentially ‘storiﬁable’, i.e., it is capable of being reported as a media story for public consumption. Almost invariably in contemporary media, the story is complemented by on-site images, sounds and witnesses that are accompanied by ofﬁcial announcements and independent expert opinion, all of which can be orchestrated into a compelling story. The media drive for stories can place politicians and civil servants under intense pressure. In turn, the public at large or affected local communities will be seeking leadership in avoiding, mitigating or removing a crisis. There is always a danger that wrong or incomplete information may lead to an information crisis, which in turn can exert undue inﬂuence on time-sensitive decision-making concerning a ship in need of assistance that may need a place of refuge under a watchful public eye.

THE ACTORS One reason for the complexity of the modern-day problem of places of refuge for ships is the diversity of actors that are concerned, each one of which is motivated by diverse considerations.

International Convention on Maritime Search and Rescue, 1979, as Amended, Chap. 3 (hereafter SAR Amendment), in IMO Doc. MSC 78/26/Add.1, supra note 44, Annex 5. 67 SAR Amendment, ibid., new para. 3.1.9 as compared to SOLAS Amendment, ibid., Reg. 33, new para. 1–1.

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Ship, Shipowner and Charterer The ship and the shipowner are the ﬁrst line of defence and liability. The shipowner would obviously want to try to complete the maritime adventure to earn the freight. If completion of the maritime adventure is not possible at least in part, the shipowner would want to safeguard his/her investment and good reputation. He/she has a responsibility to maintain a seaworthy ship and to hire competent master and crew, in accordance with international standards. The shipowner has a swath of regulatory responsibilities, not least of which under the International Safety Management Code for the Safe Operation of Ships (more generally known as the International Safety Management Code, or ISM Code), which he/she has to comply with in order to remain in business.68 The purpose of the ISM Code ‘is to provide an international standard for the safe management and operation of ships and for pollution prevention’.69 The charterer has equally signiﬁcant interests because he/she will have a range of contractual obligations to honour with shippers and consignees. The fact that shipping has for such a long time operated under a cloak of anonymity will also not help to sway public sentiment towards a decision of local authorities to grant entry permission to a ship in distress.70 The widespread perception can be summarised as follows: If the distress situation is solved successfully, the anonymous shipowner will reap the commercial beneﬁt, if the situation ends in disaster, the shipowner will hide behind an anonymous post box in a foreign country and will abscond responsibility. The shipping industry has to recognise that the sea is no longer their exclusive activity zone. Rather, the sea and its shoreline are now the commercial zone of a number of important activities that inevitably will take precedence over the commercial success of an international (and largely faceless) shipping company.

Master and Crew With a ship in distress, both master and crew on board the ship are under particular duress. Their lives might be in grave danger and they may have to rely on

68 International Safety Management Code for the Safe Operation of Ships, IMO Assembly Resolution A.741(18) adopted on 4 November 1993, IMO Doc. Res. A.741(18), 17 November 1993, in force since 1 July 1998 (hereafter ISM Code). SOLAS Chap. IX, Reg. 3 makes the ISM Code mandatory for ships constructed after 25 May 1980. SOLAS, supra note 34. 69 ISM Code, ibid., Preamble. 70 A. G. Corbet, “Who is the Shipowner?,” Seaways (December 1993), 16.

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outside help to address the situation. Most seafarers have grown up in a workplace where historical experience has shown that preserving the integrity of the ship would guarantee survival of those on board. Arguably, this was the rationale that led the master of the ‘Erika’ to ﬂood ballast tanks in an effort to stabilise his ship. If the situation worsens, the master would have to decide on what could potentially be far-reaching measures, such as jettison of cargo, and would feel justiﬁed to do so by the various exceptions in international conventions if it was with the intent of saving the ship or the lives on board the ship.71 More recently, coastal states have taken issue with this approach.72 A ship in distress is now regularly perceived as a potentially grave danger posing a serious threat to the environment. A modern-day ship master faces the dilemma of deciding whose rights should be prioritised: the right of ship and crew to safety or the protection of the coastal environment. Masters who (eventually unsuccessfully) try too long to preserve the ship, might then be charged with a criminal offence by the coastal state. On the other hand, if a master decides too early to abandon his/her ship and declare salvage attempts as unlikely to succeed, he/she might be perceived as a coward, reckless or even as an ill-informed, unqualiﬁed, sub-standard master mariner and might be charged with a criminal offence anyway. There is a sentiment in the shipping community these days that as a master of a ship in distress, one cannot win. Whatever decision he/she might take, it might be the wrong one. Seafarers, in particular ship masters, may have the perception that ships in distress ought to be given shelter but, in effect, this is a misapprehension or even a misunderstanding of the current legal regime as has been shown elsewhere. Cases such as the ‘Multitank Ascania’73 off the Scottish coast or the ‘Princess Eva’ in January 2003 in Donegal Bay, Ireland,74 may have lifted seafarers’ spirits after the highly publicised saga of the ‘Castor’ where salvors tried in vain to ﬁnd shelter for a transfer operation before Cyprus, as the ﬂag state, ﬁnally offered refuge.

71 MARPOL, supra note 37, Annex 1, Reg. 11; London Convention, supra note 38, Art. 5. See also National Research Council, Purposeful Jettison of Petroleum Cargo (Washington, D.C., National Academy Press, 1994). 72 For instance, the US Oil Pollution Act of 1990 provides strict liability for oil spill damage as well as criminal liability. Oil Pollution Act, supra note 27, ss. 2702–2704. The European Union is in the process of adopting legislation introducing criminal sanctions beyond MARPOL 73/78 levels. See “Europe Green Lights Criminal Sanctions”, Lloyd’s List (24 February 2005). 73 SIGTTO, supra note 6, 13–14. 74 For a detailed account of the handling of the ‘Princess Eva’ see IFSMA Newsletter (June 2003), letter from Captain Kieran O’Higgins to the Irish Minister for the Department of Communications, Marine and Natural Resources, 3–5.

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P&I Underwriters The insurer is directly concerned when an insured ship in distress requires a place of refuge. Mutual protection and indemnity associations, better known as P&I Clubs, normally provide cover for salvage, wreck and pollution-related perils. Thus cover for the salvage operation and until the ship is taken to a safe place is part of the P&I business. Relatively recently, the extent of P&I exposure was signiﬁcantly stressed with the incident of the ‘Castor’ in 1999, when several Mediterranean states successively refused refuge to a ship under salvage assistance so that it could unload its gasoline cargo before it could be taken to a repair facility. A salvage operation that should have taken only a few days took over a month, thus signiﬁcantly increasing the indemnity from the club concerned. Recently, some coastal states (e.g., supra note 65) also have started to request a ﬁnancial security before certain ships in distress are permitted to enter a place of refuge. This has involved the P&I Clubs in a new role, where they are now stepping into the role of surety before any losses have been sustained by coastal authorities at the place of refuge. The International Group of P&I Clubs recently informed the IMO of the new cover to be provided for this purpose.75

Salvors The salvor is frequently the ﬁrst service provider that responds to a ship in need of assistance. Salvage is a commercial undertaking, and the commitment

75

“ Places of Refuge: Provision of Financial Security to Authorities in Relation to Vessels Granted a Place of Refuge”, Submitted by the International Group of P and I Clubs (International Group), IMO Doc. LEG 89/7/1, 24 September 2004. The International Group consists of major Clubs: American Steamship Owners Mutual Protection and Indemnity Association, Inc.; Assuranceforeningen Gard (Gjensidig); Assuranceforeningen Skuld (Gjensidig); The Britannia Steam Ship Insurance Association Ltd.; The Japan Ship Owners’ Mutual Protection and Indemnity Association; The London Steam-Ship Owners’ Mutual Insurance Association Ltd.; The North of England Protecting and Indemnity Association Ltd.; The Shipowners’ Mutual Protection and Indemnity Association (Luxembourg); The Standard Steamship Owners’ Protection and Indemnity Association Ltd.; The Standard Steamship Owners’ Protection and Indemnity Association (Bermuda) Ltd.; The Standard Steamship Owners’ Protection and Indemnity Association (London) Ltd.; The Steamship Mutual Underwriting Association Ltd.; The Steamship Mutual Underwriting Association (Bermuda) Ltd.; The Steamship Mutual Underwriting Association (Europe) Ltd.; Sveriges Ångfartygs Assurance Förening (The Swedish Club); The United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Ltd.; The West of England Ship Owners Mutual Insurance Association (Luxembourg).

Characterising the Problem of Places of Refuge for Ships

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entered into with the master is to provide whatever assistance might be needed until a problem encountered by the ship is brought under control and the ship is taken to a safe place. Salvage is normally provided under a standard form of contract, of which there are several. There are a number of issues the salvor would be concerned about. First there is the provision of the service in a safe manner. In difﬁcult weather conditions the salvor would be very concerned about the safety of its own crew. Refusal of refuge, whether in sheltered coastal waters or in a port, would cause difﬁculties for the salvor who needs to complete the commercial undertaking. The salvor could be faced with an extended and open-ended commitment. Further, where coastal state response authorities intervene in relation to the vessel, and during the contract, this could pose difﬁculties of co-ordination and decision-making. The salvor would be concerned about its potential liability when it is not in charge of an operation while its contract with the ship, through the master, subsists.76

The Flag State The ﬂag state is a signiﬁcant high proﬁle actor. Sovereign states have the right to confer nationality to a ship by registering and allowing it to ﬂy their ﬂag. That right is accompanied by responsibilities, which are performed by the national maritime administration. For example, the ﬂag state is required to ‘effectively exercise its jurisdiction and control in administrative, technical and social matters over ships ﬂying its ﬂag’77 and to regulate for the purposes of promoting safety of navigation at sea. In doing so, the ﬂag state ‘is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance’.78 In addition to legislative and enforcement jurisdiction for maritime safety purposes, the ﬂag state has a duty to take legislative measures addressing vessel-source pollution and to effectively enforce rules, standards, laws and regulations combating such pollution.79 It is required to investigate infringements and penalise violations of laws.80 The international safety and marine environmental standards to be applied by the ﬂag state are contained in the numerous conventions and related instruments adopted under the auspices of the IMO, such as SOLAS and MARPOL 73/78 referred to earlier.

76

See “Brussels Witch-hunt May Deter Salvors Offering Aid, Says ISU”, Lloyd’s List (17 March 2005). 77 LOS Convention, supra note 32, Art. 94(1). 78 Ibid., Art. 94(5). 79 Ibid., Arts. 211(2) and 217. 80 Ibid., Art. 217.

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Chapter 1

At the inception of 2003, the top ten registers in terms of gross tonnage accounted for 67.4 per cent of the world ﬂeet, and the three biggest registers (Panama: 123.1 gt; Liberia: 49.2 gt; Bahamas 34.1 gt) alone comprised 37.8 per cent of the world ﬂeet. The top ten are open registers with all but a tenuous connection between owner/operator and ﬂag state.81 This is in contrast to a longstanding expectation that there must be a genuine link between the ﬂag state and the ship registered under its ﬂag.82 Regulating and exercising control over ships has become a complex and difﬁcult task in modern day shipping. The structure and organisation of a maritime administration vary among states, ranging from a unit, a division or a department83 within a ministry to a statutory administration,84 or to an independent executive agency.85 A few states have a complex mixed system (e.g., ministerial unit plus executive agency).86 Further, whereas some states have an entirely civilian maritime administration, others entrust the task to a para-military coastguard organisation87 or even the national navy.88 Several open registers have contracted private companies to run the maritime administration on their behalf.89 Common to all of these differently structured administrations will be the task to represent the maritime interests of the ﬂag state at, through and within international organisations and to liaise and interact with maritime administrations of other states. The complexity of organisational models may come to bear in cases of ships in distress when coastal or port administrations may wish to contact ﬂag state administrations to obtain additional information or assurances. Equally difﬁcult could conceivably be the situation of the master of a ship in distress seeking help and support from his or her ﬂag state administration, particularly when such support should be given in a timely and effective manner. In addition, and perhaps more importantly, the issue of seafarer nationality may come to bear on the situation. Modern day international shipping is increasingly characterised by the fact that the ﬂag of the ship gives no indica-

81

ISL Yearbook 2003 (Bremen, Institute of Shipping Economics and Logistics, 2003). 82 Convention on the High Seas, Geneva, 29 April 1958, 450 U.N.T.S. 82, Art. 5; LOS Convention, supra note 32, Art. 91. 83 E.g., Denmark, PR China and France. 84 E.g., India, Hong Kong and Singapore. 85 E.g., Panama’s Autoridad Maritima de Panama. 86 E.g., Australia, the United Kingdom and Germany. Germany has a tri-partite system with a ministerial unit, an executive agency plus a non-governmental agency forming the maritime administration. 87 E.g., the United States and the Philippines. 88 E.g., Chile and Brazil. 89 E.g., Liberia, Vanuatu, St. Vincent & The Grenadines, Dominica and Cambodia.

Characterising the Problem of Places of Refuge for Ships

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tion of the nationality of the seafarers on board.90 In such a situation, more than one state could have jurisdiction (and a responsibility) to come to the assistance of crews on board ships in need: the ﬂag state and the state of nationality of the seafarers on board. Consular ofﬁces are frequently called upon to assist. Naturally, the coastal state wherein the ship in need of assistance takes refuge also owes humanitarian duties towards the ship’s crew. Based on a recent review by Edgar Gold of several high proﬁle cases where ships and their crews were in need of assistance from the ﬂag states, one can conclude that although those states had jurisdiction under the LOS Convention, they did not seem inclined to avail themselves of this right.91 Beyond the diplomatic arena, those states could have resorted to an international third party dispute settlement mechanism, such as the International Tribunal for the Law of the Sea (ITLOS), established by the LOS Convention in Hamburg, Germany. In comparison, there have been instances of open register ﬂag states whose ﬁshing vessels, masters and crews were detained by coastal states taking the coastal state to ITLOS to secure their release against the posting of a reasonable bond or security.92 Neither ﬂag state took any such legal steps to secure the release of the detained ship masters in the ‘Erika’ and ‘Prestige’ cases. In contrast, the state of nationality of the detained masters of the ‘Erika’ and ‘Prestige’ were visibly making representations to the coastal state. The lingering issue is whether there is an expectation, perhaps an obligation, for the ﬂag state to offer protection to non-nationals working on its ships (deemed to be part of its territory) when they suffer detention by a coastal state. Gold further remarks, ‘Masters who serve on “ﬂag of convenience” vessels and who get into difﬁculties, are on their own, unless the shipowner is willing to protect them’.93

Local Authorities In essence it would seem clear that any coastal state, port authority or regional authority has the absolute right to refuse permission to entry if the ship presents

90

A summary of the developments can be found in T. Lane, “The Global Seafarers’ Labour Market: Problems & Solutions”, submission no. 93 to the ICONS Inquiry, International Commission on Shipping: Ships. Slaves and Competition, Charlestown, NSW, 2000. The full text of the submission is available online: <www.icons.org.au>, 30 April 2005. 91 Gold, supra note 42. 92 For example, in the M.V. Saiga case, St. Vincent & The Grenadines ﬁled a claim for release of that ship. It took similar action in the case of the Juno Trader. For these and other similar cases, see International Tribunal for the Law of the Sea, <www.itlos.org/start2_en.html>, 30 April 2005. 93 Gold, supra note 42, at 55.

26

Chapter 1

a serious and likely pollution threat or other hazard to life or property. Entry into a port is a privilege, not a customary right of the ship.94 Port authorities are frequently either autonomous or fall under the responsibility of a local authority, whether at the municipal, provincial or regional level as the case may be. In some cases, port authorities fall directly under the direction of a national government authority. The decision to accede to a ship’s request for refuge may potentially involve not only the safety of the ship itself, but also any interests of the coastal community concerned that might be at stake. In former times, when coastal communities to a large extent were comprised of seafarers themselves, it might have been easier to ﬁnd a safe haven or shelter for a ship in need of assistance. Not the least because decision-makers might have an understanding of the situation or a feeling that they might be in a similar situation themselves, when on board a ship. With the profound changes in international shipping, it is now highly unlikely to ﬁnd professional seafarers in traditional coastal communities. The sea has changed from being a place of employment to providing a valuable shoreline and coastal ecosystem where aquaculture, tourism or other related commercial activities rely on pristine and unpolluted waters. Coastal communities and their local authorities are of course concerned about including the safety of the ship in their decision-making process. On the other hand, local authorities should accept their responsibilities, in particular if the ship was bound for a port in their territory and would thus have been granted entry permission had it not suffered from a calamity. Local authorities should also observe good neighbourliness and not take a decision to refuse entry if the problem would then simply be exported to another part of the country, or even to a neighbouring country, which might not be aware of all the issues concerned.

Environmentalists Environmental organisations have frequently regarded oil tankers with great concern and scepticism and the critique of anyone who is perceived to have been directly responsible for a spill is always ﬁerce. The industry is perceived as villain, despite the fact that both the number of oil spills and the quantities of oil released to the marine environment have been reduced dramatically in the last 30 years.95

94 See A. V. Lowe, “The Right of Entry into Maritime Ports in International Law”, 14 San Diego Law Review, 1977, 597. 95 The number of oil spills above 700 tons in size were on average 3.5 per year during the last four years. During the 1970s there were on average 25.2 such spills per year.

Characterising the Problem of Places of Refuge for Ships

27

The images of oiled marine birds and mammals are very emotional, and at the centre of media attention, it is very difﬁcult to discern any balanced discussion during an acute oil spill event. Contributing to this imbalance is a frequent industry misperception that environmental organisations tend towards environmental extremism. Extremists tend to be a small minority. Much of the contemporary environmental movement is open to a more principled and pragmatic discussion on how to resolve complicated issues, such as the promotion of sustainable transport systems, more ecologically-friendly port design and management, and how to balance the needs of different users of coastal and marine areas. Environmentalism is an ethic permeating planning and management, including in the maritime sector.

Coastal Communities, Politicians and the Media A modern day challenge in the provision of assistance to ships in distress is the role the media play in search of a story and the effect this might have on coastal communities and their politicians. The media have the power to educate and assist, as well as the ability to turn a difﬁcult situation into an information crisis. Coastal community concerns are not without foundation, as the experience of communities in the frontline of shipping casualties resulting in large-scale oil pollution shows. The coastal communities of the Bay of Biscay suffered extensively as a result of the ‘Erika’ and ‘Prestige’ spills. The combination of these two casualties, more than any other, have characterised ships in distress in the public mind as likely casualties. Affected coastal communities may not readily listen to the safety management rationale of assisting such ships, rather than turning them away. Perhaps best captured by the sayings ‘not-in-my-backyard’ or ‘not-in-my-front-pond’, local politicians can be expected to be lobbied hard, and in turn to attempt to inﬂuence the management decision that needs to be taken to provide assistance to a ship in distress.

The International Maritime Organization The Convention on the International Maritime Organization, 1948, places this vital agency of the United Nations system in a unique position by providing it with a lead maritime sectoral mandate:

The total quantity of oil released to the marine environment has also been reduced to a similar extent. International Tanker Owners Pollution Federation, ITOPF Handbook 2004/2005 (London, ITOPF, 2004).

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(a) To provide machinery for co-operation among Governments in the ﬁeld of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade, and to encourage the general adoption of the highest practicable standards in matters concerning maritime safety, efﬁciency of navigation and prevention and control of marine pollution from ships; and to deal with administrative and legal matters related to the purposes set out in this Article; (b) To encourage the removal of discriminatory action and unnecessary restrictions by Governments affecting shipping engaged in international trade so as to promote the availability of shipping services to the commerce of the world without discrimination; assistance and encouragement given by a Government for the development of its national shipping and for purposes of security does not in itself constitute discrimination, provided that such assistance and encouragement is not based on measures designed to restrict the freedom of shipping of all ﬂags to take part in international trade; (c) To provide for the consideration by the Organization of matters concerning unfair restrictive practices by shipping concerns in accordance with Part II; (d) To provide for the consideration by the Organization of any matters concerning shipping that may be referred to it by any organ or specialized agency of the United Nations; (e) To provide for the exchange of information among Governments on matters under consideration by the Organization.96 Using this mandate, the IMO has played an important role in facilitating consideration and eventual adoption of international standards for shipping. Those standards are both in the form of hard law, through the numerous international conventions piloted by this organisation and for which it performs secretariat functions, and even more numerous sets of guidelines that facilitate the implementation of those standards. The IMO’s Maritime Safety Committee, Marine Environment Protection Committee and the Legal Committee analysed the problem of ships in need of assistance from various angles, and eventually the IMO Assembly adopted the Guidelines on Places of Refuge for Ships in Need of Assistance and a related resolution on maritime assistance services.97 The IMO also considered the possibility of initiating a process to develop an international convention on places of refuge, but a majority of member states declined to proceed at this stage.98

96 Convention on the International Maritime Organization, London, 6 March 1948, 289 U.N.T.S. 48, as amended, Art. 1. 97 Maritime Assistance Services, IMO Assembly Resolution A.950, Adopted on 5 December 2003, IMO Doc. A 23/Res.950, 26 February 2004. 98 Report of the Legal Committee on the Work of its Eighty-Ninth Session, IMO Doc. LEG 89/16, 1 November 2004, 27–28.

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SCOPE AND STRUCTURE OF THE BOOK Scope It is against the above background that the scholars and practitioners contributing to this book set out to address the subject of places of refuge for ships. In a research project over several months, culminating in a workshop in 2005 at the World Maritime University, in Malmö, Sweden, the authors set out on a series of dispassionate studies of the problem of places of refuge for ships. The studies were divided into three parts: management perspectives and responses, legal and policy perspectives and responses, and national approaches. The modern day considerations of the refuge custom are multi-perspective, and consequently the multidisciplinary approach of the book is justiﬁed. The book has not attempted to address all aspects concerning places of refuge for ships. Since the principal concern that has triggered a re-examination of the custom has been the environmental threat posed by ships in need of assistance, the focus of the book is on this dimension. The purpose of the book is not to offer solutions to a complex and sensitive problem, but rather to provide in-depth insight to a modern day policy, legal and management discourse on the problem. The research project behind the book was undertaken outside diplomatic and conference circuits on the subject. The authors have participated in their own personal capacities and do not purport to represent the views of their employers, unless so indicated.

Structure Part I explores a series of management issues and starts with a brief overview and analysis of the IMO Guidelines on Places of Refuge for Ships in Need of Assistance, written by Aldo Chircop. This is followed by a chapter authored by Olof Linden on the integrated coastal and ocean management (ICOM) framework for places of refuge for ships. ICOM has emerged as a dominant paradigm for planning for and managing multiple uses of coastal and marine areas. Traditionally, shipping has been regulated and managed on a sectoral basis, and this continues to be the case in most countries. However, as the safety regulation of navigation increasingly affects other users of the coastal and marine environment, it is legitimate to enquire whether or not regulatory matters that have spatial, environmental and socio-economic impact should be framed within the ICOM discourse. William Ritchie considers the environmental aspects of the IMO Guidelines with special reference to marine oil pollution. He considers the inﬂuence of various physical factors in the coastal area and at various distances offshore and their relevance for the designation of places of refuge. Because of their facilities, ports and harbours are considered as the

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Chapter 1

ideal places of refuge for ships that might need the services available in such places. Jens-Uwe Schröder discusses the risk assessment process in support of the decision to grant or refuse refuge. He surveys the practice of several maritime administrations to explain the existence and modus of risk assessment practices in several maritime states. It is likely that given time, state practice will gradually align with the IMO Guidelines. Rosa Mari Darbra Roman looks at port and environmental management perspectives in the context of the potential risks faced by a port in receiving a ship in distress with a particular emphasis on Spain. Those risks are to the economic life of the port, to the public health of residents in the area, threats to amenities such as tourism, and the environment. As a public relations practitioner, Mark Clarke provides insights into the communications management challenges that can be expected to arise in the context of maritime casualties. The public’s need to know is balanced by the casualty responder’s duty to inform while providing an effective and efﬁcient response. Part II focuses on pertinent aspects of public international law of the sea, international environmental law and international private maritime law. Through an extensive assessment of state practice over several hundred years, Aldo Chircop traces the historical evolution of the refuge custom and provides a tentative assessment of the state of the custom today. In a follow-up chapter, he further examines the modern international law of the sea and international environmental law considerations and implications of ships in distress and the respective rights and responsibilities of coastal states. Proshanto Mukherjee discusses the law of salvage and wreck, and the practical and legal problems that arise when the salvor, in its effort to take the salved vessel to a safe place, ﬁnds that a coastal state refuses refuge. There is an apparent disconnect between the international private law of salvage and the international public law rights and responsibilities of the coastal state. Gotthard Gauci tackles the liability issues that arise as a result of a maritime casualty, and focuses on compensation for damage. He traces the various common law remedies and defences at the national level and the growing international private maritime law regime that includes several conventions that utilise strict liability for accidental oil pollution from ships, as well as hazardous and noxious substances and bunker oil pollution. Patrick Donner considers the ﬁnancial guarantees increasingly required by coastal states as a condition for the granting of refuge. The role of the pertinent insurers, the P&I Clubs, is discussed, in particular their recent adoption of a new cover for this purpose. From a commercial angle, Hugh Kindred addresses the traditional institution of general average and the rules that apply to expenditures and sacriﬁces incurred in or in relation to a port of refuge, in the light of the recently revised York-Antwerp Rules. Part III focuses on the experiences of selected countries, each one of which has particular lessons to offer. Sam Bateman and Angela Shairp analyse Australia’s long-standing modern experience with places of refuge for ships in

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distress, with some states having speciﬁc policies for this purpose. However, its federal structure has posed challenges for co-ordinated decision-making in respective areas of constitutional competence between the two levels of government. There follow chapters on the experiences of Belgium, the United Kingdom, Denmark, Germany, the United States and Canada. The EU member states discussed have had to consider how to implement a recent EU directive on vessel trafﬁc monitoring and information system.99 Eric van Hooydonk presents the Belgian geographical, jurisdictional and shipping context for places of refuge. Despite its short coastline, Belgium has had several cases of ships in distress requesting refuge. He also discusses the role of the Port of Antwerp in the context of the regime of the River Scheldt. Toby Stone discusses the UK approach, whose places of refuge were until very recently not made public. As a result of the ‘Braer’ and other marine casualties, and the subsequent recommendations of the Lord Donaldson Report, the UK adopted a ground-breaking approach to ships in distress and maritime casualties through the institution of the ofﬁce of the Secretary of State’s Representative (SOSREP). John Liljedahl discusses Denmark’s recent policy and management plan for places of refuge, one of the ﬁrst to be formulated in response to that EU directive. Denmark has put into place a system of 22 places of refuge located at strategic locations around the country and in adjacent straits, and made them public. Uwe Jenisch examines the German approach to places of refuge in the North and Baltic Seas, which unlike the Danish approach, has not pre-designated the location of such places and virtually every port or roadstead may become a place of refuge. Paul Albertson surveys the United States’ national response system for places of refuge for ships, the levels of decision-making and the key role played by the US Coast Guard. Philip John explores options for Canada’s current efforts to develop a places of refuge policy. With its regional diversity, Canada will need to consider a common national framework while maintaining ﬂexibility to address regional and bilateral concerns. It is clear that the modern day problem of places of refuge for ships in distress, in particular in relation to large commercial vessels carrying hazardous, noxious and other dangerous cargos and fuel oil, offers no easy or obvious solutions and is likely to persist for as long as maritime trade continues.

99 Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 Establishing a Community Vessel Trafﬁc Monitoring and Information System and Repealing Council Directive 93/75/EEC, Ofﬁcial Journal, L208 (5 August 2002), 10–27.

PART I MANAGEMENT PERSPECTIVES AND RESPONSES

Chapter 2 The IMO Guidelines on Places of Refuge for Ships in Need of Assistance Aldo Chircop* INTRODUCTION This chapter discusses and reviews the International Maritime Organization (IMO) Guidelines on Places of Refuge for Ships in Need of Assistance (IMO Guidelines). The IMO Guidelines were adopted on 5 December 2003 through a resolution of the IMO Assembly, the highest-ranking body of the organisation.1 IMO has been considering places of refuge for ships since 2000 as a result of concern expressed by member states at the increasing number of instances of

* This chapter is based on an earlier work of the author entitled “Living with Ships in Distress: A New IMO Decision-Making Framework for the Requesting and Granting of Refuge”, 3(1) WMU Journal of Maritime Affairs, 2004, 31–49. The permission of the WMU Journal of Maritime Affairs to use the article is gratefully acknowledged. 1 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/RES.949, 5 March 2004 (hereafter IMO Guidelines).

35 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 35–60. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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coastal state authority refusals to grant refuge to ships in distress. The incidents of the ‘Erika’ in 1999 and ‘Castor’ in 2001 played a special role in this regard. During initial consideration, the matter was delegated to the Maritime Safety Committee’s (MSC) Sub-Committee on Safety of Navigation (NAV), where work on the IMO Guidelines was initiated and conducted, until it was completed in its 49th Session in 2003 and recommended for Assembly adoption.2 Before adoption by the Assembly, the Guidelines were also reviewed, in whole or in part, by the MSC,3 Marine Environment Protection Committee (MEPC)4 and Legal Committee.5 Although guidelines have been adopted, the topic remains an ongoing concern in the organisation.6 The debates leading to their adoption raised many sensitive political, legal and management concerns. Initially it was thought that three sets of guidelines were needed for, namely, (a) coastal states, (b) risk assessment and (c) masters on board ships.7 The ﬁnal outcome is a single-document set of guidelines with carefully crafted text that eschews peremptory language, such as rights and obligations. In recognising ‘the need to balance both the prerogative of a ship in need of assistance to seek a place of refuge and the prerogative of a coastal state to protect its coastline’, the IMO Guidelines propose a checklist of actions within a common framework for, on the one hand, the decision-makers on board the ship (masters) and those providing assistance to it (salvors), and, on the other hand, for coastal state authorities that have to decide on acceding to or refusing the request for refuge.8

2 Assembly 23rd Session, Draft Assembly Resolutions Finalized by NAV 49, IMO Doc. A 23/17/Add. 1, 17 July 2003. 3 Report of the Maritime Safety Committee on its Seventy-Sixth Session, IMO Doc. MSC 76/23, 16 December 2002, 60–61; Report of the Maritime Safety Committee on its Seventy-Seventh Session, IMO Doc. MSC 77/26, 10 June 2003, 65–71. 4 Report of the Marine Environment Protection Committee on its Forty-Eighth Session, IMO Doc. MEPC 48/21, 24 October 2002, 38–40. 5 Report of the Legal Committee on the Work of its Eighty-Seventh Session, IMO Doc. LEG 87/17, 23 October 2003, 22. 6 Assembly Resolution A.949(23) ‘requests the Maritime Safety Committee, the Marine Environment Protection Committee and the Legal Committee to keep the annexed Guidelines under review and amend them as appropriate’. IMO Guidelines, supra note 1, Preamble, 2. 7 Report of the Maritime Safety Committee in its Seventy-Fourth Session, IMO Doc. MSC 74/24, 13 June 2001, 19–23. 8 IMO Guidelines, supra note 1, Preamble, 1.

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PURPOSE In principle and as a matter of necessity, a ship in distress should be allowed access to sheltered waters to enable it to undertake temporary repairs under controlled conditions and thereby avoid or minimise a serious problem. At the same time, communities adjacent to the area where a ship is given refuge may object to the presence of that ship. As a result, port authority and/or maritime administration decision-makers and their political masters can face a dilemma in having to choose between two risks: the risk of adverse consequences for the ship if it is taken out to sea and the possible impact on the coastal state if the ship breaks up in transit; and the risk of the ship breaking up in a port or close to the coast and the environmental, economic and social consequences. Professional risk assessment is called for, and the IMO Guidelines provide a framework for a decision rationalisation process. The IMO Guidelines provide a common framework for complementary effective responses by the key actors involved. To note, the Guidelines detach the rescue of persons from the issue of refuge to the ship itself. Historically, the two issues were intertwined. Today the rescue of persons is regulated by the International Convention on Maritime Search and Rescue, 1979 (SAR Convention)9 and the International Aeronautical and Maritime Search and Rescue Manual (IAMSAR Manual),10 and need not be addressed again in the Guidelines. Instead, the Guidelines address the condition of the ship according to (1) whether it simply needs assistance and does not require evacuation of the crew, or (2) is actually in a state of distress and has already had the crew evacuated. The coastal state may still refuse refuge because the Guidelines, per se, do not create a legal obligation to provide refuge (or for that matter, a legal right to refuse refuge). The legality of the provision or denial of refuge is determined at international customary and/or conventional law, which is discussed elsewhere in this book. The Guidelines do, however, provide room for discretionary decision-making by the coastal state. At a minimum, the deciding state can be expected by other interested states to demonstrate that its decision was justiﬁable and defensible with reference to the criteria in the Guidelines. In effect, the Guidelines can be viewed as a new international standard for the decision-making processes involved. That standard is not legal at this time, and consequently the Guidelines cannot be expected to be enforceable as a legal instrument. However, the coastal state still owes duties towards other states. If

9 International Convention on Maritime Search and Rescue, London, 27 April 1979, 1405 U.N.T.S. 97 (hereafter SAR Convention). 10 IAMSAR Manual: International Aeronautical and Maritime Search and Rescue Manual, 3 Vols. (London/Montreal, IMO/ICAO, 2003).

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the coastal state does not appear as having exercised due diligence in preventing damage or loss arising from its actions, it could open itself to potential international claims by neighbouring coastal states11 and the ﬂag state.12 In that scenario, it is conceivable that non-compliance with the Guidelines may constitute additional evidentiary weight against a state that acts in a wrongful manner and thereby causes loss or damage to other states.

KEY DEFINITIONS The Guidelines avoid reference to ships in distress, focussing instead on ‘ships in need of assistance’. The effect of this is to broaden the application to a wider range of ships that are not in a technical state of distress, but need assistance nonetheless. Such ships are deﬁned as ‘a ship in a situation, apart from one requiring rescue of persons on board, that could give rise to loss of the vessel or an environmental or navigational hazard’.13 Situations can be envisaged where the master takes the vessel into an unscheduled location as a general average act. Also, this deﬁnition serves to focus the application of the Guidelines in relation to ships in situations other than those that require the rescue of the crew. There is a delimitation of the respective areas of application between the IMO Guidelines and the SAR Convention, which deﬁnes ‘distress phase’ as a situation ‘wherein there is a reasonable certainty that a vessel or a person is threatened by grave and imminent danger and requires immediate assistance’ (emphasis added).14 The SAR Convention is silent on refuge for the ship. The

11

For instance, there is a legal duty not to transfer damage or hazards from one area to another; United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN/Doc. A/CONF.62/122, 7 October 1982 (hereafter LOS Convention), Art. 195. See Places of Refuge: Summary of Responses to the CMI’s Second Questionnaire, IMO Doc. IMO/LEG 87/7/2, 16 September 2003, where most respondents stated that governments would not incur liability for granting a place of refuge and any damage that ensues. However, some respondents considered the possibility of liability where the government or authority concerned acts negligently and damage results. 12 On behalf of the shipowner. In The MV Toledo it was conceivable that Singapore as the ﬂag state could potentially have had a claim against the coastal state for loss resulting from the refusal to grant refuge. In arguing against standing for the insurers, defence counsel noted that Singapore had not instituted the claim. ACT Shipping (OTE) Ltd. v. Minister of the Marine, Ireland and the Attorney-General (The MV Toledo), (1995) 2 ILRM 30. 13 IMO Guidelines, supra note 1, para. 1.18. 14 SAR Convention, supra note 9, Annex, Chap. 1.3.11. In MSC discussions, it was pointed out that the term ‘distress’ should be deﬁned in the Guidelines in the same way

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Guidelines provide that the SAR Convention applies when safety of life is involved, whereas the Guidelines apply when a ship needs assistance and safety of life is not involved.15 Thus it is important to consider the Guidelines and the SAR Convention as complementary instruments providing operational guidance when a ship and its crew need assistance. ‘Place of refuge’ is deﬁned as a ‘place where a ship in need of assistance can take action to enable it to stabilise its condition and reduce the hazards to navigation, and to protect human life and the environment’.16 It is interesting to note that this deﬁnition does not qualify the type of action in terms of whether it constitutes a temporary or permanent solution.17 That the place should be one where the ship can take corrective action suggests that the appropriateness of the place is relative to the type of action the ship needs to take. Thus, if a ship requires ship repair facilities, a port with such facilities may be the appropriate place.

EXPECTED ACTIONS Actions by the Master and Salvor The master and/or the salvor are ﬁrst expected to appraise the situation and undertake a risk assessment by weighing four potential courses of action, namely, (1) if the ship stays in its current location, or (2) continues its voyage, or (3) reaches a place of refuge, or (4) is taken out to sea. In doing so, for each course of action the master and salvor should identify the type of assistance that the ship needs and contact the coastal state’s maritime assistance service (MAS). In another resolution proposed by NAV 49, the IMO Assembly recommended to member states the establishment of such an institution as a focal point for communication in such emergencies.18 While the master and salvor should inform MAS of the actions they plan to take, MAS should inform those persons of the facilities it can make available, whether it provides assistance or authorises navigation to a place of refuge.

as in the SAR Convention. Report of the Maritime Safety Committee on its SeventySeventh Session, IMO Doc. MSC 77/26, 10 June 2003, 66. 15 IMO Guidelines, supra note 1, para. 1.1. 16 Ibid., para. 1.19. 17 It may be argued that the taking of action to enable the ship to stabilise its situation is an indication of a temporary measure pending a ﬁnal solution to the problem. 18 Consideration of the Reports and Recommendations of the Maritime Safety Committee (Note by the Secretary-General), IMO Doc. A 23/17/Add.1, 17 July 2003.

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A potential practical difﬁculty at this stage is the following expectation: ‘Subject, where necessary, to the coastal state’s prior consent, the shipmaster and the shipping company concerned should take any necessary response actions, such as signing a salvage or towage agreement or the provision of any other service for the purpose of dealing with the ship’s situation’.19 First, it is not clear in what situations the coastal state’s prior consent is necessary and who determines that there is a necessity. Second, the prerogative to seek towage or salvage assistance has historically been that of the master, as agent of the shipowner. Salvage is in essence a commercial service. There is a danger in imposing a new level of consent before such commercial services can be contracted, especially if time is of the essence. The dangers of delay are well illustrated by the ‘Amoco Cadiz’ casualty when the captain of that ship wasted valuable time trying to contact the home ofﬁce while the ship required urgent salvage assistance.20 The safety of the ship is ﬁrst and foremost the master’s responsibility. Precious time could be wasted in dialogue with a bureaucracy that has the power to impose ‘practical requirements’. The situation could become more complex where a ship in difﬁculty is located such as to engage more than one MAS agency. This situation can be expected to occur in semienclosed seas where a navigating ship may be close to more than one coastal state, such as in the Baltic, North Sea and Mediterranean where several coastal states are in close geographical proximity. The master could be in a difﬁcult position. Because the text of the Guidelines is not peremptory, the master could ignore this requirement and simply contract the salvage service. However, the burden of proof for not seeking the coastal state’s consent would then rest on him or her, and an anxious coastal state could use this as a pretext to deny refuge.

Actions by Coastal States For coastal states, the Guidelines re-assert their prerogative to require the ship to take appropriate and timely action to pre-empt a situation of danger, and failure to do so or in urgent circumstances, the coastal state can intervene. The legal reality is much more complex than the Guidelines seem to reﬂect. Barring a dramatic change in the law of the sea or unilateral state action, there contin-

19

IMO Guidelines, supra note 1, para. 2.7. See Republic of Liberia, Decision of the Commissioner of Maritime Affairs, R.L. and Final and Interim reports of the Formal Investigation by the Marine Board of Investigation in the Matter of the Loss by Grounding of the VLCC Amoco Cadiz O.N. 4773, 16 March 1978 (Monrovia, Bureau of Maritime Affairs, 30 December 1980), FR–9 and 10. 20

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ues to be a right of international navigation through archipelagic waters, the territorial sea, straits used for international navigation, the exclusive economic zone (EEZ) and on the high seas, subject to certain restrictions. The coastal state has a right, inter alia, to exercise jurisdiction for marine environment protection purposes in archipelagic waters, the territorial sea, international straits and the EEZ.21 In practice, where the line is to be drawn between the pursuit of the right of international navigation and the exercise of coastal state jurisdiction is not always a clear matter in the law of the sea, let alone in the Guidelines. In principle, ships in distress do enjoy additional protection in the exercise of innocent, archipelagic sealanes and transit passage, and this means that stopping and anchoring during passage by ships in distress is not a violation of the normal requirement that passage be continuous and expeditious.22 The coastal state’s decision will depend on an assessment of the facts as reported by the ship and salvor, and as assessed or perceived by the coastal state. What is essential is that there be accurate reporting of a situation on board a ship to enable the coastal state to assess what action is appropriate in accordance with its law of the sea rights and responsibilities. The role of a national MAS agency will be important. Many states have multiple domestic jurisdictions with legal mandates to decide on whether or not to grant refuge. These jurisdictions can be national, provincial/regional and municipal. Port authorities may operate at any of these levels, and in other situations can be fully autonomous. At the national level, different governmental institutions, such as those responsible for transport, environment and civil defence, among others, may also be part of the decision-making process. In the past, difﬁculties encountered included (1) timely communication between internal levels of decision-making, (2) disagreement between national and local levels of decision-making, and (3) potential lack of leadership and indecisive decisionmaking in a crisis situation. Following their own particular maritime casualty experiences, France and the United Kingdom opted for a central and highranking institution or ofﬁce with a mandate that enables swift decision-making. (See Chapters 6 and 16.) This approach inﬂuenced the MAS recommendation. The IMO Guidelines do not speciﬁcally recommend the designation of preapproved places of refuge as a matter of general policy.23 The decision as to whether to establish a pre-approved list or simply designate places on an ad hoc

21 LOS Convention, supra note 11: archipelagic waters, Part IV; territorial sea, Part 2(Section 3); straits used for international navigation, Part III; and EEZ, Part IV. Further marine environmental jurisdictional provisions are provided in Part XII on the protection and preservation of the marine environment. 22 Ibid., Articles 18(2), 39(1)(c) and 52. 23 See Report of the Maritime Safety Committee on its Seventy-Seventh Session, IMO Doc. MSC 77/26, 10 June 2003, 67.

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basis (i.e., on a ship-by-ship basis) lies with the coastal state. Rather, the IMO Guidelines recommend that the coastal state develop procedures that would enable an efﬁcient and objective risk assessment. As in the case of the master and salvor, the state is expected to carefully consider its decision by consulting a non-exhaustive checklist of risks and response needs. The IMO Guidelines not only require co-operation in data collection and information exchange, but also, and most importantly, require an expert analysis of the situation, i.e., a situational and intelligent interpretation of the data.24 In the case of the ‘Castor’, most of the seven Mediterranean coastal states that refused refuge did not properly inform themselves of the situation of the ship. Thus the Guidelines recommend that an expert team board the ship, if appropriate, as part of the analysis of the risks of leaving the ship at sea or allowing it refuge. Speciﬁc points have to be addressed with reference to safety of life at sea, safety of persons and the urban/industrial environment at the place of refuge, pollution risks, potential disruption of activities at the place of refuge, consequences of denial of refuge and impact on neighbours, and preservation of the ship.25 Although the factors to be considered in the analysis cannot be exhaustive, it would have been useful for the Guidelines to also specify consideration of other uses and users of the marine environment such as aquaculture, ﬁsheries, tourism and coastal amenities. Focus on pollution risks alone hardly does justice to the variety and socio-economic importance of uses other than transportation. This is one of the dangers to be expected from a discussion of places of refuge outside an integrated coastal and ocean management context. The speciﬁc reference to the saving of property as a commercial consideration deserves additional attention. As noted elsewhere in this book, the saving of the ship or cargo did not feature prominently during the early discussions in IMO. During the debate in MSC it was agreed that the saving of property ought to be given due weight26 because after all the loss of cargo threatens human safety and the environment. This concern now appears in the IMO Guidelines as ‘due regard should be given, when drawing the analysis, to the preservation of the hull, machinery and cargo of the ship in need of assistance’.27 24

IMO Guidelines, supra note 1, para. 3.10. Ibid., para. 3.11. 26 Discussion in MSC 77, as reported in Consideration and Adoption of Amendments to Mandatory Instruments (Note by the Secretariat), IMO Doc. MEPC 49/5/1, 17 June 2003. 27 IMO Guidelines, supra note 1, para. 3.11. Places of Refuge: Submitted by the International Association of Ports and Harbours (IAPH) IMO Doc. LEG 84/7/1, 19 March 2002, accorded lower priority to commercial considerations, both in relation to the port’s operation and preservation of the integrity of the ship’s hull or structure. See also the Proposal by the International Union of Marine Insurers, in IMO Doc. MSC 77/8/2, 14 February 2003, which included a speciﬁc recommendation on the preservation of the ship and cargo when considering the granting of refuge. 25

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Following the above decision-support process, the IMO Guidelines state: ‘When permission to access a place of refuge is requested, there is no obligation for the coastal state to grant it, but the coastal state should weigh all the factors and risks in a balanced manner and give shelter whenever reasonably possible.’28 Perhaps more than any other modern multilateral instrument, this compromise text suggests that the traditional right of refuge has been made subject to the paramount principle of coastal state protection. Although, as noted above, the IMO Guidelines are not a legal instrument, they are designed to inﬂuence state practice. Similarly, a footnote in an appendix of legal instruments to the Guidelines provides that there is ‘at present no international requirement for a state to provide a place of refuge for vessels in need of assistance’.29 Given the long history of the refuge custom discussed in Chapter 8 in this book, this ﬁnding is surprising and questionable. But then the discussion at IMO does not appear to have considered in depth, if at all, the customary law of refuge for ships. The records of IMO discussions on the subject before 2003 hardly reveal any reference to the custom. What is more precise to state is that there is no international multilateral conventional law requirement to provide a place of refuge; however, historically there have been several regional and bilateral treaties that conferred such a right and an extensive state practice, well-recognised by numerous international jurists, in support of a custom. Indeed, many bilateral treaties of friendship, commerce and navigation, which frequently contained provision of refuge for ships in distress on the basis of reciprocity are still in force today. This topic is discussed in detail in Chapter 8 in this book.30 Traditionally and out of necessity, a ship entered an unscheduled port or anchored in unexpected inshore waters without a preliminary requirement to request consent. The situation of necessity was justiﬁcation in itself. The right of refuge was in a sense incidental to or an extension of the fundamental right of international navigation. Thus, in the codiﬁcation of the regime of innocent passage at the First (1958) and Third United Nations Conferences on the Law of the Sea (1973–1982), the negotiators felt no necessity to require the coastal state’s consent in creating an exception in the deﬁnition of continuous and expeditious passage.31 At the same time, the IMO Guidelines, together with the 28

IMO Guidelines, supra note 1, para. 3.12. Ibid., Appendix 1. 30 See Aldo Chircop, “Ships in Distress, Environmental Threats to Coastal States, and Places of Refuge: New Directions for an Ancien Regime?”, 33 Ocean Development and International Law (2002), 207–226, where the author provides references to several leading international law works. 31 ‘Passage shall be continuous and expeditious. However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress’. LOS Convention, supra note 11, 29

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state practice they will inﬂuence, can be expected to evidence the contemporary opinio of the international maritime community by (1) treating the traditional right more in terms of a privilege, (2) subordinating it to the rights and interests of the coastal state, and (3) signiﬁcantly controlling its enjoyment through the procedure established in the Guidelines and to the satisfaction of the coastal state. Where the coastal state allows refuge, it may impose practical requirements, and where the place of refuge is a port, there will be a requirement for a guarantor (normally the protection and indemnity insurer) to step in to cover fees (e.g., port dues), services (e.g., pilotage, towage and mooring) and expenses (e.g., safety measures that may result in costs to the port).32

CONCLUSION The objectives stated in the Preamble of Assembly Resolution A.949(23) adopting the IMO Guidelines are ambitious, especially in attempting to balance the decision-making considerations of shipowners and salvors on the one hand, and coastal states concerns on the other. That balance is weighted in favour of the coastal state, which retains the ultimate discretionary authority to refuse refuge. However, for those states that may simply have refused refuge to ships without a single glance in the past, there is now the basis for a new international expectation in their regard. The signiﬁcance of the Guidelines for ship and salvage operational purposes and coastal and/or port authority decisionmaking should not be underestimated. They may not be a legal instrument, but IMO Assembly Resolution A.949(23) is clear in inviting ‘Governments to take these Guidelines into account when determining and responding to requests for places of refuge from ships in need of assistance’.33 It is conceivable that if signiﬁcant and consistent state practice in compliance with the IMO Guidelines occurs in due course, the expectations generated by the Guidelines may achieve legal signiﬁcance.

Art. 18(2). Similar text is to be found in Art. 39(1)(c) on transit passage through international straits. 32 IMO Guidelines, supra note 1, para. 3.14. 33 Ibid., Preamble, 2.

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ANNEX GUIDELINES ON PLACES OF REFUGE FOR SHIPS IN NEED OF ASSISTANCE IMO Assembly Resolution A.949(23) 5 December 2003 THE ASSEMBLY, RECALLING Article 15( j) of the Convention on the International Maritime Organization concerning the functions of the Assembly in relation to regulations and guidelines concerning maritime safety and the prevention and control of marine pollution from ships, RECALLING ALSO the obligations and procedures for the master to come to the assistance of persons in distress at sea, established by regulation V/33 of the International Convention for the Safety of Life at Sea, 1974, as amended, RECALLING FURTHER that the International Convention on Maritime Search and Rescue, 1979, as amended, establishes a comprehensive system for the rescue of persons in distress at sea which does not address the issue of ships in need of assistance, CONSCIOUS OF THE POSSIBILITY that ships at sea may ﬁnd themselves in need of assistance relating to the safety of life and the protection of the marine environment, RECOGNIZING the importance of and need for providing guidance for the masters and/or salvors of ships in need of assistance, RECOGNIZING ALSO the need to balance both the prerogative of a ship in need of assistance to seek a place of refuge and the prerogative of a coastal State to protect its coastline, RECOGNIZING FURTHER that the provision of a common framework to assist coastal States to determine places of refuge for ships in need of assistance and respond effectively to requests for such places of refuge would materially enhance maritime safety and the protection of the marine environment, HAVING CONSIDERED the recommendations made by the Maritime Safety Committee at its seventy-sixth and seventy-seventh sessions, by the Marine Environment Protection Committee at its forty-eighth session, by the Legal Committee at its eighty-seventh session and by the Sub-Committee on Safety of Navigation at its forty-ninth session,

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1. ADOPTS the Guidelines on places of refuge for ships in need of assistance, the text of which is set out in the annex to the present resolution; 2. INVITES Governments to take these Guidelines into account when determining and responding to requests for places of refuge from ships in need of assistance; 3. REQUESTS the Maritime Safety Committee, the Marine Environment Protection Committee and the Legal Committee to keep the annexed Guidelines under review and amend them as appropriate; 4. REQUESTS the Legal Committee to consider, as a matter of priority, the said Guidelines from its own perspective, including the provision of ﬁnancial security to cover coastal State expenses and/or compensation issues, and to take action as it may deem appropriate.

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ANNEX GUIDELINES ON PLACES OF REFUGE FOR SHIPS IN NEED OF ASSISTANCE Table of Contents 1. General 1.1 to 1.7 1.8 to 1.11 1.12 to 1.17 1.18 to 1.20

Introduction Background Purpose of the guidelines Deﬁnitions

2. Guidelines for action required of masters and or salvors in need of places of refuge 2.1 2.2 2.3 2.4 2.5 to 2.6 2.7 to 2.8 2.9

Appraisal of the situation Identiﬁcation of hazards and assessment of associated risks Identiﬁcation of required actions Contacting the authority of the coastal State Establishment of responsibilities and communications with all parties involved Response actions Reporting procedures

3. Guidelines for actions expected of coastal States 3.4 to 3.8 3.9 3.10 to 3.11 3.12 to 3.14

Assessment of places of refuge Event-speciﬁc assessment Expert analysis Decision-making process for the use of a place of refuge

Appendix 1: Applicable international conventions Appendix 2: Guidelines for the evaluation of risks associated with the provision of places of refuge

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1. GENERAL Introduction Objectives of providing a place of refuge 1.1 Where the safety of life is involved, the provisions of the SAR Convention should be followed. Where a ship is in need of assistance but safety of life is not involved, these guidelines should be followed. 1.2 The issue of “places of refuge” is not a purely theoretical or doctrinal debate but the solution to a practical problem: What to do when a ship ﬁnds itself in serious difﬁculty or in need of assistance without, however, presenting a risk to the safety of life of persons involved. Should the ship be brought into shelter near the coast or into a port or, conversely, should it be taken out to sea? 1.3 When a ship has suffered an incident, the best way of preventing damage or pollution from its progressive deterioration would be to lighten its cargo and bunkers; and to repair the damage. Such an operation is best carried out in a place of refuge. 1.4 However, to bring such a ship into a place of refuge near a coast may endanger the coastal State, both economically and from the environmental point of view, and local authorities and populations may strongly object to the operation. 1.5 While coastal States may be reluctant to accept damaged or disabled ships into their area of responsibility due primarily to the potential for environmental damage, in fact it is rarely possible to deal satisfactorily and effectively with a marine casualty in open sea conditions. 1.6 In some circumstances, the longer a damaged ship is forced to remain at the mercy of the elements in the open sea, the greater the risk of the vessel’s condition deteriorating or the sea, weather or environmental situation changing and thereby becoming a greater potential hazard. 1.7 Therefore, granting access to a place of refuge could involve a political decision which can only be taken on a case-by-case basis with due consideration given to the balance between the advantage for the affected ship and the environment resulting from bringing the ship into a place of refuge and the risk to the environment resulting from that ship being near the coast.

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Background 1.8 There are circumstances under which it may be desirable to carry out a cargo transfer operation or other operations to prevent or minimize damage or pollution. For this purpose, it will usually be advantageous to take the ship to a place of refuge. 1.9 Taking such a ship to a place of refuge would also have the advantage of limiting the extent of coastline threatened by damage or pollution, but the speciﬁc area chosen may be more severely threatened. Consideration must also be given to the possibility of taking the affected ship to a port or terminal where the transfer or repair work could be done relatively easily. For this reason the decision on the choice and use of a place of refuge will have to be carefully considered. 1.10 The use of places of refuge could encounter local opposition and involve political decisions. The coastal States should recognize that a properly argued technical case, based on a clear description of the state of the casualty, would be of great value in any negotiations which may take place. 1.11 At the international level, the Conventions listed in Appendix 1, as may be amended, constitute, inter alia, the legal context within which coastal States and ships act in the envisaged circumstances.

Purpose of the Guidelines 1.12 The purpose of these Guidelines is to provide Member Governments, shipmasters, companies1 (particularly in connection with the ISM Code and procedures arising therefrom), and salvors with a framework enabling them to respond effectively and in such a way that, in any given situation, the efforts of the shipmaster and shipping company concerned and the efforts of the government authorities involved are complementary. In particular, an attempt has been made to arrive at a common framework for assessing the situation of ships in need of assistance. 1.13 These Guidelines do not address the issue of operations for the rescue of persons at sea, inasmuch as the practical difﬁculties that have given rise to the examination of the issue of places of refuge relate to problems other than those of rescue. Two situations can arise:

1

As deﬁned in the ISM Code.

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– the ship, according to the master’s assessment, is in need of assistance but not in a distress situation (about to sink, ﬁre developing, etc.) that requires the evacuation of those on board; or – those on board have already been rescued, with the possible exception of those who have stayed on board or have been placed on board in an attempt to deal with the situation of the ship. 1.14 If, however, in an evolving situation, the persons on board ﬁnd themselves in distress, the rules applicable to rescue operations under the SAR Convention, the IAMSAR Manual and documents arising therefrom have priority over the present Guidelines (and procedures arising herefrom). 1.15 In any case the competent MRCC should be informed about any situation which may develop into a SAR incident. 1.16 Even though a “rescue” operation, as deﬁned in the International Convention on Maritime Search and Rescue (SAR) is not the case, the safety of persons must nevertheless be constantly borne in mind in the application of these Guidelines, particularly in two respects: – if the ship poses a risk (explosion, serious pollution, etc.) to the life of persons in the vicinity (crews of salvage vessels, port workers, inhabitants of the coastal area, etc.); – if persons voluntarily stay (master, etc.) or go (ﬁre-ﬁghters and other experts, personnel of marine salvage or towage companies, etc.) on board to attempt to overcome the difﬁculties experienced by the ship. 1.17 These Guidelines do not address the issue of liability and compensation for damage resulting from a decision to grant or deny a ship a place of refuge.

Deﬁnitions 1.18 Ship in need of assistance means a ship in a situation, apart from one requiring rescue of persons on board, that could give rise to loss of the vessel or an environmental or navigational hazard. 1.19 Place of refuge means a place where a ship in need of assistance can take action to enable it to stabilize its condition and reduce the hazards to navigation, and to protect human life and the environment. 1.20 MAS means a maritime assistance service, as deﬁned in resolution A.950(23), responsible for receiving reports in the event of incidents and serving as the point of contact between the shipmaster and the authorities of the coastal State in the event of an incident.

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2. GUIDELINES FOR ACTION REQUIRED OF MASTERS AND/OR SALVORS OF SHIPS IN NEED OF A PLACE OF REFUGE Appraisal of the situation 2.1 The master should, where necessary with the assistance of the company and/or the salvor, identify the reasons for his/her ship’s need of assistance. (Refer to paragraph 1 of Appendix 2.).

Identiﬁcation of hazards and assessment of associated risks 2.2 Having made the appraisal referred to in paragraph 2.1 above, the master, where necessary with the assistance of the company and/or the salvor, should estimate the consequences of the potential casualty, in the following hypothetical situations, taking into account both the casualty assessment factors in their possession and also the cargo and bunkers on board: – if the ship remains in the same position; – if the ship continues on its voyage; – if the ship reaches a place of refuge; or – if the ship is taken out to sea.

Identiﬁcation of the required actions 2.3 The master and/or the salvor should identify the assistance they require from the coastal State in order to overcome the inherent danger of the situation. (Refer to paragraph 3 of Appendix 2.)

Contacting the authority of the coastal State 2.4 The master and/or the salvor should make contact with the coastal State in order to transmit to it the particulars referred to in paragraphs 2.1 to 2.3 above. They must in any case transmit to the coastal State the particulars required under the international conventions in force. Such contact should be made through the coastal State’s Maritime Assistance Service (MAS), as referred to in resolution A.950(23).

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Establishment of responsibilities and communications with all parties involved 2.5 The master and/or the salvor should notify the MAS of the actions that are intended to be taken and within what period of time. 2.6 The MAS should notify the master and/or the salvor of the facilities that it can make available with a view to assistance or admittance of the ship to a place of refuge, if required.

Response actions 2.7 Subject, where necessary, to the coastal State’s prior consent, the shipmaster and the shipping company concerned should take any necessary response actions, such as signing a salvage or towage agreement or the provision of any other service for the purpose of dealing with the ship’s situation. 2.8 The master, the company and, where applicable, the salvor of the ship should comply with the practical requirements resulting from the coastal State’s decision-making process referred to in paragraphs 3.12 to 3.14.

Reporting procedures 2.9 The reporting procedures should be in accordance with the procedures laid down in the safety management system of the ship concerned under the ISM Code or resolution A.852(20) on Guidelines for a structure of an integrated system of contingency planning for shipboard emergencies, as appropriate.

3. GUIDELINES FOR ACTIONS EXPECTED OF COASTAL STATES 3.1 Under international law, a coastal State may require the ship’s master or company to take appropriate action within a prescribed time limit with a view to halting a threat of danger. In cases of failure or urgency, the coastal State can exercise its authority in taking responsive action appropriate to the threat. 3.2 It is therefore important that coastal States establish procedures to address these issues, even if no established damage and/or pollution has occurred.

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3.3 Coastal States should, in particular, establish a Maritime Assistance Service (MAS).2

Assessment of places of refuge Generic assessment and preparatory measures 3.4 It is recommended that coastal States endeavour to establish procedures consistent with these Guidelines by which to receive and act on requests for assistance with a view to authorizing, where appropriate, the use of a suitable place of refuge. 3.5 The maritime authorities (and, where necessary, the port authorities) should, for each place of refuge, make an objective analysis of the advantages and disadvantages of allowing a ship in need of assistance to proceed to a place of refuge, taking into consideration the analysis factors listed in paragraph 2 of Appendix 2. 3.6 The aforementioned analysis, which should take the form of contingency plans, is to be in preparation for the analysis provided for below when an incident occurs. 3.7 The maritime authorities, port authorities, authorities responsible for shoreside safety and generally all governmental authorities concerned should ensure that an appropriate system for information-sharing exists and should establish communications and alert procedures (identiﬁcation of contact persons, telephone numbers, etc.), as appropriate. 3.8 The aforementioned authorities should plan the modalities for a joint assessment of the situation.

Event-speciﬁc assessment Analysis factors 3.9

This analysis should include the following points:

– seaworthiness of the ship concerned, in particular buoyancy, stability, availability of means of propulsion and power generation, docking ability, etc.;

2

Unless neighbouring States make the necessary arrangements to establish a joint service.

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– nature and condition of cargo, stores, bunkers, in particular hazardous goods; – distance and estimated transit time to a place of refuge; – whether the master is still on board; – the number of other crew and/or salvors and other persons on board and an assessment of human factors, including fatigue; – the legal authority of the country concerned to require action of the ship in need of assistance; – whether the ship concerned is insured or not insured; – if the ship is insured, identiﬁcation of the insurer, and the limits of liability available; – agreement by the master and company of the ship to the proposals of the coastal State/salvor to proceed or be brought to a place of refuge; – provisions of the ﬁnancial security required; – commercial salvage contracts already concluded by the master or company of the ship; – information on the intention of the master and/or salvor; – designation of a representative of the company at the coastal State concerned; – risk evaluation factors identiﬁed in Appendix 2; and – any measures already taken.

Expert analysis 3.10 An inspection team designated by the coastal State should board the ship, when appropriate and if time allows, for the purpose of gathering evaluation data. The team should be composed of persons with expertise appropriate to the situation. 3.11 The analysis should include a comparison between the risks involved if the ship remains at sea and the risks that it would pose to the place of refuge and its environment. Such comparison should cover each of the following points: – safeguarding of human life at sea; – safety of persons at the place of refuge and its industrial and urban environment (risk of ﬁre or explosion, toxic risk, etc.); – risk of pollution;

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– if the place of refuge is a port, risk of disruption to the port’s operation (channels, docks, equipment, other installations); – evaluation of the consequences if a request for place of refuge is refused, including the possible effect on neighbouring States; and – due regard should be given, when drawing the analysis, to the preservation of the hull, machinery and cargo of the ship in need of assistance. After the ﬁnal analysis has been completed, the maritime authority should ensure that the other authorities concerned are appropriately informed.

Decision-making process for the use of a place of refuge 3.12 When permission to access a place of refuge is requested, there is no obligation for the coastal State to grant it, but the coastal State should weigh all the factors and risks in a balanced manner and give shelter whenever reasonably possible. 3.13 In the light of the outcome of the assessment provided for above, the coastal State should decide to allow or refuse admittance, coupled, where necessary, with practical requirements. 3.14 The action of the coastal State does not prevent the company or its representative from being called upon to take steps with a view to arranging for the ship in need of assistance to proceed to a place of refuge. As a general rule, if the place of refuge is a port, a security in favour of the port will be required to guarantee payment of all expenses which may be incurred in connection with its operations, such as: measures to safeguard the operation, port dues, pilotage, towage, mooring operations, miscellaneous expenses, etc.

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APPENDIX 1 APPLICABLE INTERNATIONAL CONVENTIONS At the international level, the following Conventions and Protocols are in force and constitute, inter alia, the legal context within which coastal States and ships act in the envisaged circumstances:3 – United Nations Convention on the Law of the Sea (UNCLOS), in particular article 221 thereof;4 – International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (the Intervention Convention), 1969, as amended; – Protocol relating to Intervention on the High Seas in Cases of Pollution by substances other than Oil, 1973; – International Convention for the Safety of Life at Sea, 1974 (SOLAS 1974), as amended, in particular chapter V thereof; – International Convention on Salvage, 1989 (the Salvage Convention);5

3 It is noted that there is at present no international requirement for a State to provide a place of refuge for vessels in need of assistance. 4 “1. Nothing in this Part shall prejudice the right of States, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including ﬁshing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences. 2. For the purposes of this article, ‘maritime casualty’ means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo.” 5 Parties to the International Convention on Salvage, 1989 (Salvage 1989), are obliged under article 11 of the Convention when considering a request for a place of refuge, to take into account the need for co-operation between salvors, other interested parties and public authorities to ensure the efﬁcient and successful performance of salvage operations. Article 11 of the Salvage Convention states: A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into account the need for co-operation between salvors, other interested parties and public authorities in order to ensure the efﬁcient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general.

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– International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 (the OPRC Convention); – International Convention for the Prevention of Pollution from Ships, 1973, as modiﬁed by the Protocol of 1978 (MARPOL 73/78); – International Convention on Maritime Search and Rescue, 1979 (SAR 1979), as amended; – Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972; – Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, 1971; – Convention on Limitation of Liability for Maritime Claims (LLMC), 1976; – International Convention on Civil Liability for Oil Pollution Damage (CLC), 1969; – International Convention on Civil Liability for Oil Pollution Damage (CLC), 1992; – International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND), 1992.

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APPENDIX 2 GUIDELINES FOR THE EVALUATION OF RISKS ASSOCIATED WITH THE PROVISION OF PLACES OF REFUGE When conducting the analysis described in paragraphs 3.4 to 3.8, in addition to the factors described in paragraph 3.9, the following should be considered. 1. Identiﬁcation of events, such as: – – – – – – –

ﬁre explosion damage to the ship, including mechanical and/or structural failure collision pollution impaired vessel stability grounding.

2. Assessment of risks related to the identiﬁed event taking into account: 2.1

Environmental and social factors, such as: – safety of those on board – threat to public safety What is the nearest distance to populated areas? – pollution caused by the ship – designated environmental areas Are the place of refuge and its approaches located in sensitive areas such as areas of high ecological value which might be affected by possible pollution? Is there, on environmental grounds, a better choice of place of refuge close by? – sensitive habitats and species – ﬁsheries Are there any offshore and ﬁshing or shellﬁshing activities in the transit area or in the approaches to the place of refuge or vicinity which can be endangered by the incoming ship in need of assistance? – economic/industrial facilities What is the nearest distance to industrial areas? – amenity resources and tourism – facilities available Are there any specialist vessels and aircraft and other necessary

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means for carrying out the required operations or for providing necessary assistance? Are there transfer facilities, such as pumps, hoses, barges, pontoons? Are there reception facilities for harmful and dangerous cargoes? Are there repair facilities, such as dockyards, workshops, cranes? 2.2

Natural conditions, such as: Prevailing winds in the area. Is the place of refuge safely guarded against heavy winds and rough seas? Tides and tidal currents. – weather and sea conditions Local meteorological statistics and number of days of inoperability or inaccessibility of the place of refuge. – bathymetry Minimum and maximum water depths in the place of refuge and its approaches. The maximum draught of the ship to be admitted. Information on the condition of the bottom, i.e., hard, soft, sandy, regarding the possibility to ground a problem vessel in the haven or its approaches. – seasonal effects including ice – navigational characteristics In the case of a non-sheltered place of refuge, can salvage and lightering operations be safely conducted? Is there sufﬁcient space to manoeuvre the ship, even without propulsion? What are the dimensional restrictions of the ship, such as length, width and draught? Risk of stranding the ship, which may obstruct channels, approaches or vessel navigation. Description of anchorage and mooring facilities in the place of refuge. – operational conditions, particularly in the case of a port Is pilotage compulsory and are pilots available? Are tugs available? State their number and horsepower. Are there any restrictions? If so, whether the ship will be allowed in the place of refuge, e.g. escape of poisonous gases, danger of explosion, etc. Is a bank guarantee or other ﬁnancial security acceptable to the

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Contingency planning, such as: – competent MAS – roles and responsibilities of authorities and responders Fire ﬁghting capability – response equipment needs and availability – response techniques Is there a possibility of containing any pollution within a compact area? – international co-operation Is there a disaster relief plan in the area? – evacuation facilities

2.4

Foreseeable consequences (including in the media) of the different scenarios envisaged with regard to safety of persons and pollution, ﬁre, toxic and explosion risks.

3. Emergency response and follow-up action, such as: – – – – – –

lightering pollution combating towage stowage salvage storage.

Chapter 3 The Integrated Coastal and Ocean Management Framework Olof Linden INTRODUCTION From an ecological standpoint, the transition zone between land and sea represents one of the most difﬁcult environments for life on the surface of this planet. The environmental conditions are relatively stable on land and, particularly, in the ocean, but in the coastal zone they vary drastically due to tidal ﬂuctuations, temperature variations, rain (fresh water) and the drying sun. These cycles of change characterise the life that has evolved in the coastal zone. As a consequence, the diversity of life forms is particularly high considering the relatively small geographical extension of the coastal zones, in total estimated to about four percent of the surface of the planet. In fact, several of the ecosystems in the coastal zone are some of the most diverse (in terms of species and taxonomical groups) on the planet. Coral reefs are by far the most species-rich marine environment. Shallow reefs are also the habitat of more vertebrates than any other environment on the planet. In addition to high ﬁgures for biodiversity, coastal zones are also highly productive as a result of

61 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 61–74. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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run-off of nutrients from land or the upwelling of nutrient-rich water from deeper areas. The productivity ﬁgures of, for example, seagrass beds in coastal lagoons are similar to those from well-fertilized rice paddies or wheat ﬁelds. Species diversity and productivity in coastal ecosystems are threatened, however, by anthropogenic activity. The coastal zone has been subjected to tremendous human immigration and settlement during the last decades. A number of coastal towns and cities, particularly in the developing world, have grown into large mega-cities, often with several million people.1 However, population growth in coastal rural areas has also been signiﬁcant. In reality, the coastal strip from the high tide mark to several kilometres inland has been urbanised in rural areas in large parts of Europe, Asia, the Americas and Africa.2 Ports are probably the most important nuclei for this industrial development, and international maritime trade is driving this process. Another factor having great inﬂuence on the coastal areas is tourism which may cause very negative impacts if poorly planned and without any environmental management. However, it should be said though that well managed tourism may have very positive effects on local and national economies and the job market. Considering the large number of human activities in the coastal zone and the vulnerability of many of the natural systems in this zone, it is important that a balance is found between the human direct and indirect impacts on the one hand, and the need for protection of the ecosystems on the other hand.3 Integrated management is a necessary tool to achieve this balance. Shipping already has a profound impact on coastal zones and, with increasing maritime activity, its impacts will increase in the near future unless shipping is better incorporated in the planning and management of coastal and ocean areas. Places of refuge for ships in distress is one of several maritime industry issues that need to be resolved within the context of integrated coastal and ocean planning and management.

1 See, UNEP-GPA, “About the GPA Global Program of Action”, <www.gpa.unep.org/ about/index.html>, 2 August 2005; J. Samarakoon, “Issues of Livelihood, Sustainable Development, and Governance: Bay of Bengal”, 33 Ambio, No. 1–2, 2004, 34–44; D. Li and D. Daler, “Ocean Pollution from Land-based Sources: East China Sea, China”, 33 Ambio, No. 1–2, 2004, 107–113; M. Marques, M. F. da Costa, M. I. de O. Mayorga and P. R. C. Pinheiro, “Water Environments: Anthropogenic Pressures and Ecosystem Changes in the Atlantic Drainage Basins of Brazil”, 33 Ambio, No. 1–2, 2004, 68–77. 2 D. Hinrichsen, Coastal Waters of the World. Trends, Threats, and Strategies (Washington DC, Island Press, 1998). 3 See, for example, 1982 World Charter on Nature (UN GA Res. 37/7), <ﬂetcher. tufts.edu/multi/texts/UNGARES37–7.txt>, 20 July 2005.

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THE INTEGRATED COASTAL AND OCEAN MANAGEMENT CONCEPT Since the adoption of the United Nations Convention on the Law of the Sea, 19824 and particularly following the United Nations Conference on Environment and Development in 19925 the concept of integrated coastal and ocean management (ICOM) (also known as integrated coastal zone management (ICZM) or integrated coastal area management (ICAM)) has evolved as the framework for the management of coastal and marine areas. As a consequence, in many countries, the ICOM (alternatively ICZM or ICAM) concept has become accepted as the framework within which the development and protection of coastal and marine activities and issues are discussed. (See, for example, Chapters 14 and 19, respectively on the situation in Australia and Canada.) Other countries, notably several in Europe, have not used this concept as the basis for their discussions and decision-making, but have used other frameworks developed before the ICOM concept was established. For example, in Sweden, the term ‘National Physical Planning’ is used. ‘National Physical Planning’ includes the entire terrestrial area as well as the coastal and marine areas. ICOM, and other similar terms, can be deﬁned as an evolving process of managing coastal and marine resources with the goal of achieving sustainable utilisation of space and resources while protecting threatened resources. The concept involves attempts to integrate and balance the wishes of the different stakeholders in the coastal areas.6

ICOM AND MARITIME INDUSTRY Shipping and port operations are often the core of the multitude of human activities that take place in a coastal area. ICOM planning focuses on the increasing economic, social and environment pressures on coastal areas. However, maritime issues have hardly been raised in the discussions regarding the development of ICOM. In fact, as McConnell points out, shipping and,

4 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN/Doc. A/CONF.62/122, 7 October 1982 [hereafter LOS Convention]. 5 See Chapter 17, ‘Protection of the oceans, all kinds of seas, including enclosed and semi-enclosed seas, and coastal areas and the protection, rational use and development of their living resources’, of Agenda 21. Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26/REV.1, Vols. 1–III (1992). 6 See, for example, J. R. Clark, Coastal Zone Management Handbook (Boca Raton, CRC Lewis Publishers, 1996); B. Cicin-Sain and R. Knecht, Integrated Coastal and Ocean Management; Concepts and Practices, Washington DC, Island Press, 1998); and FAO, Integrated Coastal Area Management and Agriculture, Forestry and Fisheries, FAO Guidelines (Rome, Food and Agricultural Organization, 1998).

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broadly speaking, the maritime industry are ‘out of the picture’ or at best operating at the margins of ICOM activity, thinking and approaches.7 This does not mean that the maritime sector has neglected environmental concerns. On the contrary, the shipping sector has been more successful than most other sectors in adapting to the requirements of modern society. An example of this is the decreasing level of ship-generated oil spills compared to other marine environmental stress factors.8 Human activities on land, such as tourism and urbanisation, and issues related to ﬁshing play a more central role in ICOM planning. However, as the globalisation of trade and markets is met by increased ship trafﬁc, the need to incorporate shipping and maritime issues into ICOM planning is even more important. There are several critical issues where the conﬂicts between the maritime sector and other interests in the coastal areas are growing. A few of these are discussed below. There is a traditional conﬂict between the interests of the shipping industry in having shipping lanes that are as economical (i.e., as short) as possible and several other interests in coastal and marine areas. For example, conservationists wish to keep as large a distance as possible between ships carrying hazardous goods and environmentally-sensitive areas. Fishing interests often clash with shipping in areas where passing ships interfere with ﬁshing activities. The competition for space between coastal aquaculture and shipping is acute in parts of the world, for example, China,9 and is an issue of increasing importance as the aquaculture industry is expanding rapidly throughout the world. As ship trafﬁc intensiﬁes, the conﬂicts between these sectors can be expected to increase. The problem of toxic ship-bottom paints has not been fully resolved and the toxic substances in the paints are still an issue of concern.10 The levels of organotins in the sediments in or near ports and shipping lanes are still at concentrations that give rise to reproduction failures and malformations among non-target species.11 Another issue is the distribution of potentially invasive alien species with ballast water.12 The introductions via ships ballast of invasive

7

M. McConnell, “Capacity Building for a Sustainable Shipping Industry: A Key Ingredient in Improving Coastal and Ocean Management”, 45 Coastal & Ocean Management, 2002, 617–632. 8 See, for example, GESAMP, A Sea of Troubles (Nairobi, United Nations Environment Programme, 2001). 9 See, H. Yu, “China’s Coastal Ocean Uses: Conﬂicts and Impacts”, 25 Coastal & Ocean Management, 1994, 161–178. 10 Although the IMO adopted International Convention on the Control of Harmful Anti-fouling Systems on Ships on 5 October 2001, it has not yet received enough ratiﬁcations to come into force. 11 See, for example, C. Alzieu, “Tributyltin: A Case Study of a Chronic Contaminant in the Coastal Environment”, 40 Ocean & Coastal Management 1998, 23–36. 12 The IMO adopted the International Convention for the Control and Management

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species such as the European Zebra Mussel into the Great Lakes in North America, the Comb Jelly to the Black Sea, and toxic dinoﬂagellates to many locations around the world, represents ecological, economic and human health problems of catastrophic proportions.13 The impacts of the maritime industry in coastal areas are growing and environmental concerns can only be expected to increase in the future. Hence the shipping sector has to develop a broader awareness and willingness to take part in discussions with other sectors of society in the context of an ICOM framework. The preamble of the United Nations Convention on the Law of the Sea, 1982 (LOS Convention) already recognised this: ‘the problems of ocean space are interrelated and need to be considered as whole’.14 There has been little, if any, discussion of places of refuge for ships in distress in the context of ICOM. Yet it is hard to point to any issue that potentially will have such profound consequences on all other users of the ocean and coastal space and resources. Perhaps the issue of places of refuge could be a much-needed starting point for closer interaction between the maritime shipping sector and other stakeholders within the framework of ICOM.

ICOM AND PLACES OF REFUGE It should be pointed out that there is no perfect place of refuge suitable for all vessels in all situations. Vessels such as large tankers and freighters cannot be taken into some locations. Some potential places of refuge may have too shallow approaches or be too narrow for safe manoeuvring. Small ships require completely different conditions than big ones. In the case of an emergency, decisions will always have to be taken based on the speciﬁc vessel, its cargo and condition, and the environment and operational issues at hand. Hence the formal designation of places of refuge requires consideration of several factors and processes and planning to minimise multiple use conﬂicts and the impacts

of Ships’ Ballast Water and Sediments on 13 February 2004, but the Convention is not yet in force. 13 See, for example, Y. Zaitsev and B. Öztürk (eds), Exotic Species in the Aegean, Marmara, Black, Azov and Caspian Seas (Istanbul, Turkish Marine Research Foundation, 2001, Publ. No. 8); EUR 18592, Harmful algal blooms in European marine and brackish waters (Luxembourg, Ofﬁce of Ofﬁcial Publications of the European Communities, 1999, VIII); J. T. Carlton, “The Scale and Ecological Consequences of Biological Invasions in the World’s Oceans”, in: Sandlund, Schei, Viken (eds.), Invasive species and Biodiversity Management (Dordrecht, Kluwer Academic Publishers, 1999); D. Pimentel, L. Lach, L. Zuniga, and D. Morrison, “Environmental and Economic Costs of Nonindigenous Species in the United States”, 50 BioScience, 2000, 53–65. 14 Supra note 4, preamble.

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in the case of a situation where a particular marine site is needed as a place of refuge. Factors and processes that need to be considered are discussed below. It is assumed that a place of refuge is a site which is relatively protected from ocean waves and winds, where a ship can be ofﬂoaded, where any spills can be contained and where marine environmental clean up can have a chance of being effective. Logically, the best place of refuge would be an existing harbour, which would have the necessary equipment, facilities and expertise to deal with a ship requiring assistance, as well as a contingency plan to deal with any accident involving that ship. However, ports and harbours may be impossible to use as a ship in distress may pose too great a threat to infrastructure, human housing, and on-going cargo handling, as well as other normal harbour activities. Natural bays, inlets and protected waters behind islands and headlands will, however, have to be considered as ‘sacriﬁced’ sites, meaning that damage to environment and other resources would be concentrated in one area in order to save another area from damage. Such a decision would be based on the assumption that the area in question had relatively low ecological, economic and social value. To identify such areas along a coast, investigations of environment and socio-economic factors will have to be made in advance. Such investigations will also have to consider wave and current conditions under different weather and tidal scenarios (this is discussed further below). In any case, the identiﬁcation in advance of such ‘natural’ places of refuge is likely to be very difﬁcult as a result of negative reactions from local communities and authorities. There are several examples of coastal areas where places of refuge have been identiﬁed after a more or less painstaking process involving representatives from other interest groups. An example is Prince William Sound (PWS) in Alaska. The maps in Figure 1 depict some of the risk factors used to select potential places of refuge and provide an index of potential places of refuge in the Sound as well as details on each site. Please note that this is a draft work product from the PWS Places of Refuge Workgroup.

Physical/Oceanographic Conditions Oceanographic and hydrographic conditions, including currents, wave patterns, ice conditions and bottom topography, play a central role in the decision regarding the location of a place of refuge. Obviously exposure to wind and waves are central issues in the process of selecting a suitable place of refuge. In addition to constructed ports and harbours, natural embayments providing protection against winds and waves are often the ﬁrst choice. However, tide-generated waves and currents may pose a signiﬁcant problem nearshore, and basic information regarding tidal current patterns is necessary. In temperate and arctic waters, ice conditions will likely be a problem during parts of the year. Ice

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prevents the applying of booms, etc., around a ship in distress. However, in certain situations, ice of signiﬁcant thickness may in fact be of beneﬁt to the salvage operation, for example, if the ice is thick enough to carry vehicles and the rescue team. Water depth and bottom topography are also considerations in the selection of a place of refuge. Too shallow areas may prevent access of the vessel, while deep waters complicate the setting of anchors. In addition, bottom substrates such as relatively ﬂat rock, hard gravel or soft sediments may not provide safe anchoring. In such places, ﬁxed anchoring spots may be arranged as part of the process of identifying a place of refuge. In the decisionmaking process that precedes allocation of places of refuge, oceanographic expertise as well as meteorologists should be consulted. It is important to consider the physical characteristics that may prevail during different parts of the year and to ensure that plans for suitable places of refuge are ﬂexible.

Facilities on Land or in the Coastal Area that May Affect Access A place of refuge, in most cases, needs access to certain facilities to allow for unloading of cargo, to enable repairs, etc. Examples of such facilities on land include roads, jetties, slipways, cranes, airﬁelds and heliports. However, the fact that, for example, roads are available does not necessarily mean that they are suitable for all the kinds of transport that may be required in connection with a salvage operation. Similarly, there may be limits as to the carrying Figure 1: Site assessment matrix and potential places of refuge in Prince William Sound, Alaska

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Figure 1, continued

Source: State of Alaska, Prince William Sound Geographic Response Strategy Project, <www.dec.state.ak.us/spar/perp>, 3 August 2005. These maps are working material and have not been ﬁnally approved by the Prince William Sound Places of Refuge Working Group.

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capacity of bridges, and overpasses may limit accessibility for cranes and vehicles of certain heights. In addition, other users may occupy the road or require their use to an extent that affects the rescue operations in a negative way. For example, during holiday periods, large numbers of tourists may utilise coastal roads. In such cases, the use of these roads for transport in connection with a salvage operation may require that the roads to be completely closed to other users. This is an issue that needs to be considered together with planning authorities, trafﬁc police, etc. Similar considerations may also exist in relation to airports and docks in connection with a salvage operation. Other users may occupy shorelines needed for rescue operations. The urbanisation of the coastal strip may prevent the access necessary for a salvage operation. If, for example, the waterfront is completely built-up, it may be impossible to have sufﬁcient access to the coast to be able to carry out meaningful rescue operations. In addition, during parts of the year, large coastal areas may be fully occupied by various tourist activities/facilities. Some of these operations may be difﬁcult to temporarily move to other areas or close down during a rescue operation. Coastal aquaculture is another human activity that may cause signiﬁcant problems for a rescue operation. Aquaculture is presently the fastest growing sector in food production with growth ﬁgures of around ten percent/year.15 All forecasts indicate continued expansion in the foreseeable future. As noted earlier, increased numbers of aquaculture units will expand the number of interactions with other human activities/issues, including shipping, and requirements in connection with rescue operations.

Ecological Conditions The ecological conditions in a potential place of refuge should be considered in advance, preferably in the context of ICOM or similar planning processes. Natural resources and sensitive areas that should be included in the planning process are: Sites for migratory birds: As a consequence of maritime accidents, oil spills frequently cause signiﬁcant damage to seabirds and birds along the shoreline. In the case of sites for migratory birds, the concentration of birds during spring, fall and winter migrations, and to what extent certain areas may be the resting/feeding sites for particularly sensitive, rare or endangered species are the primary considerations. Bird watchers and nature conservation societies are often good sources of information regarding the location

15

World Review of Fisheries and Aquaculture (Rome, Food and Agricultural Organization, 2004).

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Chapter 3 and character of sites for migratory birds. Sites of particular importance are often identiﬁed under the Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention).16 Article 2.2 of the Convention states that: ‘Wetlands should be selected for the List [of Wetlands of International Importance] on account of their international signiﬁcance in terms of ecology, botany, zoology, limnology or hydrology’ and indicates that ‘in the ﬁrst instance, wetlands of international importance to waterfowl at any season should be included’. Other international conservation agreements also recognise the adverse impact of human activities, including maritime trafﬁc, on migratory birds, as well as other wildlife species.17 Marine mammal rookeries and haulouts: In addition to being sensitive to spills of oil, marine mammals are often very sensitive to disturbance in any form, such as presence of people, trafﬁc by boats and aircrafts, loud noises, etc. Seals and sea lion colonies are often highly visible and are well-known to local people and agencies/authorities. What may be less well known is the occurrence of mammals that are less visible and may not live in large colonies, for example, otters, dugongs, and whales. Rookeries and haulouts are, in many cases, only used during parts of the year and may be empty for several months between reproduction seasons. Seabird colonies: The largest concentrations of birds are found in the immediate vicinity of the sea. Colonies of gannets, auks, murres, gulls and terns may be very large during the breeding season and are very sensitive to disturbance. Hence any interference in connection with, for example, the salvage operation of a ship may interfere with the breeding success of these birds.

16 Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, Iran, 2 February 1971, as amended by the Protocol of 3 December 1982 and the Amendments of 28 April 1987, 11 I.L.M. 969, <www.ramsar.org>, 20 July 2005. 17 The Convention on the Conservation of Migratory Species of Wild Animals (also known as CMS or Bonn Convention) aims to conserve terrestrial, marine and avian migratory species throughout their range. CMS acts as a framework Convention, utilising agreements may range from legally binding treaties (called Agreements) to less formal instruments, such as Memoranda of Understanding, that can be adapted to the requirements of particular regions. Agreements concerning marine species concluded under the auspices of CMS include those related to African-Eurasian migratory waterbirds, cetaceans in the Mediterranean Sea, Black Sea and contiguous Atlantic area, as well as in the Baltic and North Seas, and the Wadden Sea. Convention on the Conservation of Migratory Species of Wild Animals, Bonn, 23 June 1979, 19 I.L.M. 15. For a description of the Agreements see the CMS website, <www.cms.int/about/ intro.htm>, 20 July 2005.

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Anadromous ﬁsh streams: Of main concern here are streams that are important for salmon migration and spawning. Spills of, for example, oil may have an impact on the migration and spawning of species such as salmon.18 Streams, although very important to a population of salmon that is ﬁshed over large coastal and offshore areas, may still look very small and insigniﬁcant. Fish spawning areas: The potential effects of spills of oil, as well as the impacts of other disturbances on spawning populations of marine ﬁsh such as herring, is often a matter of concern. However, in connection with the ‘Exxon Valdez’ oil spill no signiﬁcant indications of negative effects of petroleum hydrocarbons on the fertility rate of Paciﬁc herring in oilimpacted sites were found.19 Sites for threatened or endangered species: Bird species such as eagles and mammals such as dugongs are very sensitive to disturbances of any kind. Great care has to be taken not to disturb these species, particularly during their breeding season. Wetlands, mangroves, coral reefs and similar areas of high biodiversity and productivity: Wetlands such as salt marshes, mangroves and coastal lagoons are often highly productive environments that play a key role in the lifecycle of many species.20 In fact, some of the highest productivity ﬁgures in any natural ecosystem have been found is such habitats. Coral reefs are highly productive, in addition to being habitat for a larger number of species than any other marine of aquatic habitat.

Socio-economic Conditions Obviously social and economic factors will play a central role in the discussion regarding the suitability of a potential site to function as a place of refuge. The presence of residential housing or other expensive development in or near the coastal zone will most likely prevent any deliberate attempt to use such an area

18

B. G. Bue, S. Sharr, and J. E. Seeb, “Evidence of Damage to Pink Salmon Populations Inhabiting Prince William Sound, Alaska, Two Generations After the Exxon Valdez Oil Spill”, 127 Transaction of the American Fisheries Society, 1998, 35–43. 19 W. H. Pearson, E. Moksness, and J. R. Skalski, “A ﬁeld and laboratory assessment of oil spill effects on survival and reproduction of Paciﬁc herring following the Exxon Valdez spill”, in: P. G. Wells, J. N. Butler, and J. S. Huges, eds., Exxon Valdez Oil Spill: Fate and Effects in Alaskan Waters (Philadelphia, ASTM STP 1219, 1995). 20 “What are wetlands”, Ramsar Information Paper no. 1, (Gland, Ramsar Convention Bureau, n.d.), <www.ramsar.org/about/about_infopack_1e.htm>, 20 July 2005.

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as a place of refuge. Several other socio-economic factors important in the process of identifying places of refuge include: – Number of people living in the zone that may be affected if a rescue operation fails or, for example, a tanker caught ﬁre – Other activities that could be affected, such as industrial facilities (power or desalination plants), schools, hospitals, etc. – Fishing harbours – Aquaculture facilities such as pens, cages, oyster and mussel cultures – Tourist facilities and bathing beaches

Cultural Heritage Considerations Archeological and cultural heritage sites are also found in the coastal zone.21 For example, along extensive stretches of the Mediterranean coast there are underwater archaeological sites. Sometimes coastal cultural heritage sites on land or under water have been eroded to an extent that they are difﬁcult to recognise; other sites may be very prominent and easy to ﬁnd. Examples of coastal archeological sites that may be impossible to recognise are middens consisting of the shells of marine molluscs and cultural remains. Caves and rock shelters with human cultural deposits are also sometimes found very close to the shore in coastal areas. Sometimes such sites are of importance to indigenous peoples.

Marine Protected Areas Marine protected areas (MPAs) have been established for the protection of marine biodiversity or the protection of ﬁsh aggregation/spawning areas. In addition to their ecological importance, MPAs are often of political signiﬁcance and there is, in many cases, also an international responsibility and commit-

21

In 1972 the international community adopted the Convention Concerning the Protection of the World Cultural and Natural Heritage (hereafter World Heritage Convention) [UNESCO Document 17 C/106 of 15 November 1972, reprinted in 11 I.L.M. 1358 (1972)] with a view to protecting the cultural and natural heritage threatened by the traditional causes of decay, as well as by changing social and economic conditions. The Convention established the World Heritage Committee, which maintains the World Heritage List, an inventory of exceptional cultural and natural heritage sites that includes several marine areas that could serve a potential places of refuge (e.g., the Great Barrier Reef and the recently added Western Norwegian Fjords). <whc.unesco. org/en/convention/>, 20 July 2005.

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ment involved in their establishment.22 However, although the number of sites with MPA status has increased in the last decades, only very small areas are, in fact, under real protection (for example, in Sweden about ten percent of the terrestrial area is under protective status while less than 0.1 percent of the marine area is under protection).23 This is partly due to the realisation that protection of an aquatic environment may only be truly successful if the entire water body can be protected from impacts of, for example, pollution. Water is a transient medium, and it is often unrealistic to assign a ‘protected area’ status to a coastal area close to shipping lanes, ports and urbanised areas.

CONCLUSION: ICOM PLANNING AND PLACES OF REFUGE In the process of establishing ICOM plans for coastal areas, the issue of places of refuge for ships in distress should be considered a natural element. In reality, all coastal areas adjacent to navigation routes run the risk of having a nearby shipping accident and planning for such cases is necessary both from the point

22

For a discussion of the role of MPAs as a management tool for ICOM, see, for example, the work of the IUCN World Commission on Protected Areas (WCPA), which promotes the establishment and effective management of a worldwide representative network of terrestrial and marine protected areas. <www.iucn.org/themes/wcpa/biome/ marine/programme.htm>, 20 July 2005. 23 The Parties to the Convention on Biological Diversity [22 May 1992, reprinted in 31 I.L.M. 823 (1992)] agreed on a programme of action for implementing the conservation and sustainable use of marine and coastal biodiversity elements of the Convention known as the Jakarta Mandate on Marine and Coastal Biological Diversity [Decision II/10, adopted in 1995]. Through its programme of work, the Convention focuses on integrated marine and coastal area management, the sustainable use of living resources, marine and coastal protected areas (MCPAs), mariculture and alien species. The seventh meeting of the Conference of the Parties in 2004 incorporated a substantial amount of new text on the topic of MCPAs into the programme of work, echoing the commitment made in the Plan of Implementation of the World Summit on Sustainable Development (United Nations Department of Economic and Social Affairs, Division for Sustainable Development, <www.un.org/esa/sustdev/>, 20 July 2005). The COP agreed on the establishment of a national framework of MCPAs consisting, in the context of integrated marine and coastal area management, of areas allowing sustainable uses and areas where extractive uses are excluded. Article 26 of Decision VII/5, urges parties to urgently address, through appropriate integrated marine and coastal management approaches, all threats, including, inter alia, those arising from shipping/transport, in order to maximise the effectiveness of marine and coastal protected areas and networks in achieving their marine and coastal biodiversity objectives. Decision VII/5, Review of the programme of work on marine and coastal biodiversity, <www.biodiv.org/decisions/?dec=VII/5>, 20 July 2005.

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of view of spill preparedness and the need to direct a ship to a place of refuge. The authorities involved in coastal and ocean management planning should therefore collaborate with the maritime administrations and the shipping industry in assessing the most probable course of events in case of an accident, considering shipping routes, types of vessels, cargoes, etc. The maritime administration should also act more proactively and collaborate with other actors in the ICOM planning process. This would not only ensure better preparedness in case of an incident and the need for a place of refuge, but would assist with planning for other aspects of shipping that affect other users of coastal and ocean resources, for example, ballast water, ship bottom paints, the location of shipping routes, and contingency planning for spills.

Chapter 4 A Consideration of the Environmental Component of the IMO Guidelines on Places of Refuge for Ships in Need of Assistance with Special Reference to Oil Pollution William Ritchie* INTRODUCTION In the International Maritime Organization (IMO) Guidelines on Places of Refuge for Ships in Need of Assistance (Resolution A.943(23), December 2003)1 reference is made to both environmental factors and pollution at the

* The author would like to record his thanks to Anne Shipley of AICSM for preparing the manuscript and Reprographic Staff in the Department of Geography, University of Aberdeen for their help and advice. The permission of ITOPF for the use of Figure 2 is also acknowledged. 1 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), Adopted on 5 December 2003, IMO Doc. A 23/Res.949, 5 March 2004.

75 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 75–91. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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proposed place of refuge, which could be a natural bay or anchorage or, more likely, a port or harbour.2 Refuge is deﬁned as ‘a place where a ship in need of assistance can take action to enable it to stabilize its condition and reduce the hazards to navigation, and to protect human life and the environment’.3 In the Introduction to the Guidelines, seven objectives are listed; one refers to pollution4 and four refer to ‘the environment’.5 Paragraph 1.9 further states, ‘Taking such a ship to a place of refuge would also have the advantage of limiting the extent of coastline threatened by damage or pollution but the speciﬁc area chosen may be more severely threatened’.6 Underlying the Guidelines is the reasonable proposition that, under some conditions, the best way to reduce the risk of an oil spill is to take the vessel to a place of refuge in order to lighten its cargo and bunkers and to repair damage. In the analysis of factors during a speciﬁc event an issue to be considered is the distance and estimated transit time to a place of refuge.7 By implication the risk of oil spillage into the marine environment during this passage also poses a risk of pollution both to the sea area (and possibly to the sea bed). Wind, tide and waves could also move oil onto an adjacent coastline. The concept of risk evaluation runs through the entire Guidelines and within this general concern the term ‘risk of pollution’ occurs in paragraph 3.11. Appendix 2, the Assessment of Risks Related to the Identiﬁed Event Taking Place (Section 2), lists several environmental and social factors to be considered in evaluating risk: • Pollution caused by the ship • Designated Environmental Areas: are the place of refuge and its approaches located in sensitive areas such as areas of high ecological value which might be affected by possible pollution? Is there, on environmental grounds, a better choice of place of refuge close by? • Sensitive habitats and species8 And, in a separate section, natural conditions, including weather and sea state, bathymetry, seasonal effects such as, e.g., ice, are also mentioned as important considerations.9 There does not appear to be any discussion, however, of the environmental impact of the various types of oil. This is understandable, but it can be a critical factor in the assessment of potential pollution from an oil spill.

2 3 4 5 6 7 8 9

Ibid. Ibid., para. 1.19. Ibid., para. 1.3. Ibid., paras 1.4, 5, 6 and 7. Ibid., para. 1.9. Ibid., para. 3.9. Ibid., Appendix 2. Ibid.

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Thus it is reasonable to conclude that environmental concerns, mainly driven by the risk of pollution, are considered to be as important as factors such as safety, and were a prime driving force in the development of the IMO Guidelines. The production of these guidelines could also be seen as a reaction to speciﬁc major oil spill incidents where the notion of ‘places of refuge’ was advocated by a number of parties, including media interests. It is too late to examine the wisdom and the need for the development of these guidelines but, given the repeated reference to ‘the environment’, more consideration needs to be given to those assumptions and considerations that lie within the use of the term ‘environment’ in the proposed IMO Guidelines. These environmental considerations also underpin the need for the decision-making process both to identify places of refuge in advance and, during a speciﬁc event, to determine if towing or self-propulsion to a place of refuge is the best available option.

LOCATION OF INCIDENT IN RELATION TO COASTLINES Environmental concerns that would arise in the event of an oil spill at sea depend on the location of the incident and the passage to the place of refuge (Figure 1). Different states use several offshore distances to determine the deﬁnition of zones of ownership or rights, e.g., international waters, exclusive economic zone, 12-mile and 3-mile deﬁnitions of coastal waters, many of which would be measured from internationally agreed coastal state baselines and contiguous state median lines as agreed by treaty.10 Management and control of these differing sea areas would also vary according to the different bodies and agencies that ‘police’ these areas. Within a single national jurisdiction, these agencies could vary on a national sectoral or sea-use basis, e.g., ﬁshing, oil/gas production or military zones. The agency responsible would normally be a national coastguard-type organisation, but other variations are possible. These control and managerial situations would be critical to the response and therefore the impact of an oil spill on marine and coastal environments, but the potential for pollution damage is partly independent of these operational variables. The impact would be determined largely by natural factors such as, on the one hand, weather and sea state and, on the other hand, the basic nature of the marine environment such as depth of water, nature of the sea bed, organisms in the water column and proximity to the coastline. The type of spillage is also critical, e.g., bunker fuel compared with light petroleum crude oil. Most of these variable factors are independent of political and oil spill contingency managerial scenarios. It is also likely that the baseline environmental and

10

United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN/Doc. A/CONF.62/122, 7 October 1982.

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Chapter 4 Figure 1: Some scenarios with a need to take a ship to a place of refuge. Diagram emphasises difference between distant and nearshore events and assumes areas of conservational interest exist.

ecological information will vary from state to state. Some countries might have compiled detailed studies of marine environmental and ecological conditions, e.g., as part of a strategic environmental assessment process for the allocation of oil/gas exploration blocks,11 but other areas may be bereft of data other than at a superﬁcial level. Similarly, the ability to acquire real-time information, e.g., on the size and movement of the oil on the surface of the sea, is also likely to vary. Because of the number and range of these variables, it is necessary to approach the problem of an offshore oil spill and the passage of a stricken vessel to the nearest place of refuge on a scenario-type basis that examines, in some detail, the likely fate of oil in a range of locations and natural circumstances. In addition, a review of oil spill trajectory modelling would also be of value.

11 W. Ritchie, “The Concept of the International Transfer of Good Practice in Major Oil and Gas Developments; A Perspective from Environmental Science”, in: Nordquist et al., eds., International Energy Policy, the Arctic and Law of the Sea (Leiden and Boston, Martinus Nijhoff, 2005).

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THE OIL SPILL PREMISE The initial scenario is based on a major offshore oil spill incident and the decision has been taken either to tow or to make sufﬁcient repairs to enable the tanker to proceed under its own power to the nearest suitable place of refuge for either repair or for the cargo and, possibly, bunker fuel to be ofﬂoaded. Other possible sources of pollution, e.g., on board waste products, are considered to be of relatively minor importance and environmental risk. It is also assumed that spillage and leakage will continue while the vessel is in passage. Another scenario, which is not discussed in this chapter, is a possible grounding occurrence. A vessel might be disabled, e.g., loss of steering power or a propulsion defect. This scenario could be described as a serious pollution incident in so far as the vessel could drift onto an adjacent coastline. The risk of a grounding is low since a vessel in this condition would probably seek assistance, e.g., rescue tug, and thereby minimise any risk of a pollution event. Many of the major well-publicised oil spills have been caused by grounding and wrecking on a coastline, and an extensive literature exits in describing both these events and their environmental consequences.12

THE DEEPWATER AND DISTANT SCENARIO The terms ‘deepwater’ and ‘distant’ both require deﬁnition and do not necessarily occur together; for some coastlines, very deep water can be found close inshore. Nevertheless, the depth of water is a signiﬁcant factor, especially in relation to waves and tidal currents. Distance from the shoreline can be deﬁned easily by measurement and, in general, the greater the distance from the coast, the more time becomes available to counter the oil spill effects and provide for natural processes to minimise most of the oil pollution problems. Distance and position, however, are taken into account in oil spill planning, when calculations are made on the time which might elapse under a series of conditions, usually a worst case combination of currents, waves and, most important by far, wind strength, duration and direction, to estimate impact on different coastlines. For example, with an oil spill in the northeast Atlantic, say west of Shetland, calculations on the basis of historical wind, wave and currents would produce forecasts of possible impact on both the Shetland and Orkney Islands, parts of Norway, parts of mainland Scotland and possibly Northern Ireland.13 These calculations lie at the heart of

12 See, for example, R. Edwards and H. Sime, The Sea Empress Oil Spill (London, Chartered Institute of Water and Environmental Management, 1998). 13 Conﬁdential report by BP on development of Clair Oilﬁeld west of Shetland.

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all spill trajectory predictions for surface oil. Normally, these calculations produce ﬁgures of several days (in reality, changes in wind direction and tidal currents would tend to increase the actual time interval) by which time the chances of signiﬁcant impact on a coastline will have been reduced by natural dissipative forces such as evaporation and dispersion into the water column (see below). Accordingly, a distant and probably deepwater scenario poses little real risk other than to the sea surface, the water column and the sea bed in the location of the spill. Whether the spillage is in deep or shallow water, natural forces, especially evaporation, reduce the effect of the oil spillage relatively quickly but certain factors, as discussed below, affect these complex physical and chemical processes. In shallow water, wave and current effects, especially turbulence and sedimentation processes, modify the rate of natural ‘clean up’ of oil on the surface and within the water column.

THE IMPORTANCE OF THE TYPE OF OIL Oil is a general term used to denote petroleum products, which mainly consist of hydrocarbons. Crude oils are made up of a wide spectrum of hydrocarbons ranging from very volatile, light materials, such as propane and benzene, to more complex heavy compounds such as bitumens, asphaltenes, resins and waxes. Reﬁned products such as petrol or fuel oil are composed of smaller and more speciﬁc ranges of these hydrocarbons.14 The fate of an oil spill varies considerably because of the type of oil. This can be summarised on the basis of density as illustrated by Figure 2. Thus light oils under certain conditions can dissipate in hours; heavier oils dissipate totally in weeks and months. Figure 2, in itself, is not deﬁnitive since the chemical composition of a cargo of oil or fuel in bunkers can vary greatly, but the general trend is correct. The essential process, however, consists of the observation that in any oil, the lighter fractions, e.g., petrol, kerosene, diesel, all evaporate quickly, whereas the heavier fractions take much longer. It is this heavy fraction that persists for a long time, and some components, e.g., heavy fuel oil, scarcely evaporate at all.15 Accordingly, any prediction of the rate of removal of an oil spill at sea requires two fundamental set of facts to be known, i.e., the type of oil and the effectiveness of natural clean up processes, and these are mainly controlled by the combination of atmospheric and sea conditions.

14 See International Tanker Owners Pollution Federation Limited (ITOPF), “Fate of Oil Spills”, <www.itopf.com/fate.html>, 20 June 2005. 15 See Figure 2.

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Figure 2: Rate of removal of oil and water-in-oil emulsion. Graph shows volume remaining on sea surface as a percentage of the original volume spilled

Group Group I Group II Group III

Density less than 0.8 08.–0.85 0.85–0.95

Group IV

greater than 0.95

Examples Gasoline, Kerosine Gas Oil, Abu Dhabi Crude Arabian Light Crude, North Sea Crude Oils (e.g. Forties) Heavy Fuel Oil, Venezuelan Crude Oil

Source: ITOPF (2004). Reproduced with the permission of ITOPF

NATURAL PROCESSES There is a growing and increasingly complex science that examines the behaviour of oil released near the surface of the sea under ice-free conditions. (The presence of ice and the assumption of low temperatures modiﬁes the nature and rate of natural cleaning processes.) The main processes as identiﬁed by the International Tanker Owners Pollution Federation (ITOPF) are: 1. Spreading and drifting – usually this leads to thinning – and the main driving force is the wind. 2. Wave effects/emulsiﬁcation – if there are breaking waves or turbulence an oilin-water emulsion ‘chocolate mousse’ forms, and this is more difﬁcult to counter. 3. Evaporation and photolysis – the more volatile hydrocarbons evaporate and the remaining material becomes more viscose and denser – this process is

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4. 5.

6.

7.

controlled by the chemistry of the oil and ambient temperatures. Photolysis is a chemical process by which molecules are broken down into small units through the absorption of light. Spray – under some wave conditions, a small fraction of oil might be converted into aerosols. Dissolution – some compounds in oil can dissolve in water, especially if the oil is ﬁnely dispersed in the water column. The same light fractions dissolve and evaporate. Accordingly, dissolution is relatively unimportant. Sinking – in theory the density of oil should prevent sinking into the water column, but density can increase sufﬁciently for residual ‘heavy’ oil to be carried downwards if there is a natural sinking of surface water due, for example, to surface chilling. Absorption – although unlikely in most distant and deepwater situations, molecules can be attached to ﬁne suspended solids in the water column and both can sink to greater depths. Organic remains are thought to behave in a similar fashion.16

Depending on oil type and ambient atmospheric and water conditions, natural processes can remove the more volatile fractions in hours and days; the main problem is the ‘heavier’ residual oil which can follow three trajectories – remain on the surface, remain or descend through the water column, and reach the sea bed sediments.17 Dispersion across the surface of the sea will tend towards complete removal of even heavy fractions unless a ‘mousse’ or ‘tar ball’ develops.18 In the latter case, these ‘tar balls’ can persist for years especially under low temperature conditions. This long interval of time means that ‘tar balls’ can be carried at the whim of currents, waves and wind in a variety of directions and, possibly years later, drift onto some distant shoreline. ‘Mousse’ is likely to break-up in time and subsequently disperse, but this type of formation will certainly drift further than a ‘normal’ oil slick. Thus, as a general rule, an oil spill event is characterised by a short initial period when spreading, dissolution, evaporation and emulsiﬁcation occur rapidly and most of the ‘lighter’ components are removed, and a second, longer period when oxidation, sedimentation and biodegradation are the effective natural ‘clean up’ processes.19 The residual proportion of oil also moves into the water both downwards and laterally within the column (due to water mass movements). At this stage biodegradation (especially by bacteria) and ingestion by biota will occur.20

16 International Tanker Owners Pollution Federation Limited (ITOPF), The Fate of Marine Oil Spills, Technical Information Paper No. 2 (ITOPF, London, 2002), 2–5, <www.itopf.com/fate.html>, 20 June 2005. 17 Ibid., at 8. 18 Ibid., at 4. 19 Ibid., at 5. 20 Ibid.

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Normally the fraction that descends into the water column is very small. There is consensus that the total toxic effects are likely to be low and non-serious. However, unlike surface oil, there is an element of unpredictably and uncertainty as to the fate of oil in the water column and on the sea bed. Thus, in general, the greater the amount of oil remaining on the surface, the greater the chances of natural clean up. In distant waters the likelihood of direct impact on surface birds, e.g., divers, or sea mammals, e.g., cetaceans, have to be recognised, but these creatures are mobile and could avoid potential damage. There are, however, areas of concentration of surface feeding species offshore where the risk might be greater, and such zones need to be identiﬁed as part of the database for marine areas that have a relatively higher risk of an oil spill, e.g., major sea lanes and tanker routes. If a leaking tanker is being taken to a place of refuge, such areas would need to be avoided (Figure 1). But any such deviation of route would add time and therefore risk. Any oil that reaches the deep sea bed is likely to do so in minute quantities and is likely to be bound into organic or sedimentary particles. Biodegradation will occur over time. The particles might also be covered and, more likely, carried into surface sediment by bioturbation. Some particles might be ingested by scavenging sea bed species.21 Biodegradation is a complex and valuable process that is of great importance in determining the short and long-term fate of oil. Although some might dispute the effectiveness of bacteria and other biota, these natural processes are likely to be very powerful in eliminating possible damage to ecosystems. Dispersion of residual hydrocarbons in the sea, in the water column and on to the sea bed are not likely to be on a very large scale, especially in the distant and deep seawater scenario. In relation to the vast volume of moving water, any concentration of possible toxic materials is likely to be extremely small to the point of being negligible. The resilience and effectiveness of natural systems, both physical/chemical and biological, are probably much more effective than would have been advocated decades ago when earlier massive oil spills ﬁrst hit world headlines.22 Thus, although there might be particular concentrations of vulnerable species in some distant and deepwater areas (perhaps also on a seasonal basis), by taking into account the area and volume of moving sea water, it is clear that natural

21 P. F. Kingston, I. M. Y. Dixon, S. Hamilton, C. G. Moore and D. C. Moore, “Studies on the Response of Intertidal and Subtidal Marine Benthic Communities to the Braer Oil Spill”, in: J. M. Davies and G. Topping, eds., The Impact of an Oil Spill in Turbulent Waters: The Braer, Proceedings of Symposium in Royal Society of Edinburgh (Edinburgh, Stationary Ofﬁce, 1997), 209. 22 See, for example, D. Sell et al., “Scientiﬁc Criteria to Optimise Oil Spill Clean up”, Proceedings of the International Oil Spill Conference, Long Beach, California, (Washington, DC, American Petroleum Institute, 1995), 595.

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processes are capable of relatively rapid clean up without human assistance. All of which begs the question, why bring a leaking tanker into shallow water closer to the coastline? From an ecological/pollution perspective this would appear to be a counter-intuitive action. As a general rule, both the perception and the reality of an oil spill on economic, social and environmental grounds increases greatly with proximity to the coastal zone. On the other hand, the reasons for towing to a place of refuge are not primarily related to environmental or ecological conditions but more practical concerns about ship and crew safety, ﬁnancial value of the vessel, insurance and salvage issues (as discussed elsewhere in this volume). Nevertheless, after many recent oil spills, one can detect the relief in most quarters when an announcement is made ‘that the wind has shifted and the oil appears to be drifting offshore thus saving the coastline’. This is not merely an ‘out of sight, out of mind’ reaction, but a realisation that the potential for lasting damage has been reduced.

Natural Processes – Shallow Water and Near-Coast If an oil spill occurs in shallow water and/or near a coastline, the advantage of distance, which gives time to allow natural processes to eliminate most, if not all, the potential problems, disappears in proportion to the proximity to vulnerable coastal environments. Vulnerability is normally deﬁned initially by a combination of physical characteristics and facility of clean up to which are added the presence of relevant ecological and conservational designations.23 This information is normally held on a map or geographic information system (GIS) database with varying degrees of accuracy and reliability. These maps of vulnerability pre-exist any given oil spill and, as such, are powerful factors in how an oil spill response is managed. In addition to sea surface processes such as spreading, evaporation, dispersion, emulsiﬁcation, oxidation and photolysis, and a range of biodegradation options, shallow water nearshore introduces new factors progressively (Figure 1). These include currents, wave effects, sedimentation and the probability of greater ecological richness. Other legitimate sea users such as ﬁshing, aquaculture, recreation and commercial trafﬁc add complexity to the impact assessment. Most if not all nation states are determined to keep oil at sea and to avoid physical impact on any type of coastline. To this end, physical protection in the form of booms and other devices are used, and spraying to break-up and disperse the oil might also be employed. As a vessel closes in to a coastline, the space to manoeuvre (if possible) becomes more restricted and the coastal

23

W. Ritchie, “Monitoring Long-Term Environmental Change: Some Lessons from Sullom Voe, Shetland Islands”, 3 WMU Journal of Maritime Affairs, No. 2, 2004, 193.

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conﬁguration creates local tide and wave effects that are often complex and difﬁcult to predict. An example of complexity occurs in major estuaries where the reversing tidal ﬂux combines with river discharges. On the other hand, as discussed later, many estuaries have long-established hydrodynamic models that are subsumed within oil spill trajectory models for more accurate predictions of oil movements. Over shallow water and under the inﬂuence of difference types of coastline, e.g., headlands and bays, open beaches, islands, reefs and skerries, salt marshes and deltas, deepwater waves change at water depths equal to half the wavelength. At this point, the waves change from deep-water orbital to an increasingly ﬂatter motion and, at a speciﬁc depth, break. This major change is normally in relatively shallow water. Wave-generated currents can be powerful. Breaking waves create turbulence and downward mixing. These currents and turbulent forces dislodge and transport sediments of all sizes. In relation to oil spills, ﬁne particles of mud, silt and sand are of particular importance because they can combine with oil droplets. These waves refract, reﬂect and diffract according to the incoming wave vectors and the depth and conﬁguration of the coastal zone. Tidal movements, which are of little consequence in deep water, change into palpable currents often up to four knots in conﬁned waters. Oceanic and tidal currents are also modiﬁed by the conﬁguration of regional coastlines and can be ‘squeezed’ between mainland and islands to create fast ﬂows of water both at depth and on the surface. The concept of a stable water column changes and stratiﬁcation, e.g., a thermocline layer, will tend to disappear and be replaced by a more mixed layer with greater lateral and vertical mixing. In simple terms, the movement of oil in and on the surface of the sea becomes more complex with a tendency to fragmentation with different threedimensional trajectories over the course of relatively short time spans. Local currents and wave effects therefore have powerful inﬂuences on how a patch of oil moves and where and when it will impact onto a coastline, thereby introducing some degree of unpredictability for prevention and clean up management. The evidence of several recent oil spills in relatively shallow water near coastlines have all illustrated a degree of complexity and uncertainty according to the interplay of dynamic marine and atmospheric conditions. In some instances the predictive models have been shown to be inadequate and real-time surveyance had to be undertaken, but only in daylight hours. If the scenario consists of either an offshore ‘distant’ or a nearshore incident that requires towing to the designated port, the passage though this nearshore zone is similar in operational terms to navigation through these waters to and from the chosen port as place of refuge. If the chosen place of refuge is not a port, but, for example, a bay, then familiarity with coastal navigation and established routing will not be as common. If the vessel is streaming oil, a ribbon of potential pollution will cross this zone but the volume is likely to be small, and both natural forces and pre-existing prevention and clean up resources are likely to sufﬁce. If, as is more likely, the scenario is for the oil spill event to

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occur near the coast but offshore, many natural forces are available to reduce the impact on both coastlines and contiguous marine habitats. Turbulence will aid dispersion and force some fraction of the oil, particularly the heavier fraction, into the water column where absorption into ﬁne suspended sediment is more likely. Spreading, evaporation, oxidation and other processes will also occur, but there may be insufﬁcient time before oil or emulsiﬁed oil in water is stranded on coastlines with smothering and toxic effects of various degrees of severity. Thus the crucial differences between different types of oil spill events is not just the type of oil nor the range of natural clean up processes that are likely to be present, but the time that is allowed to elapse between the ﬁrst spillage and the movement of the stricken vessel to the pre-positioned facilities which will be found in the place of refuge. In addition to the time factor, serious consideration needs to be taken if the course of the vessel, of necessity, passes from the point of damage to the place of refuge and, in so-doing, traverses a series of different types of coastal waters. This could spread the potential pollution impacts along various lengths and types of coastline each with its own particular dynamic and complex physical and biological systems and vulnerabilities. If the vessel is presumed to be leaking and the rate of loss is relatively low, then this might not be a serious environmental concern. In principle, however, movement of the vessel could increase the geographical range of the impact of the oil and the range and extent of potentially vulnerable habitats (and other types of problem, e.g., tainting of aquaculture sites). Analysis of oil spills suggests that the severity of initial oiling is not measured with any degree of precision. Accordingly, if a vessel is taken along a coastline by whatever route, public concern will, rightly or wrongly, see equal threats to the entire length of coastline even when the severity of impact is more likely to be variable. Expressed another way, the threat of oil pollution to a coastal zone is not proportional to the volume of spillage.

THE PLACE OF REFUGE It is assumed that the place of refuge is fully equipped to handle, to ofﬂoad by lighter, pipeline or ship-to-ship transfer, and to provide ﬁrst-rate oil spill prevention, clean up and handling facilities. Experienced and competent personnel with good oil spill contingency training will also be on-hand. Few, if any, natural bays and inlets will have these facilities. The concept in such instances would be one of sacriﬁce, i.e., concentrating all the negative effects in a chosen, conﬁned location which, presumably, was of relatively low environmental, ecological, scenic and commercial value. Under such circumstances containment would be essential. Such areas, presumably bays and inlets, would need to be pre-identiﬁed and some essential facilities pre-emplaced, thereby engendering additional costs. In addition to evaluating the ‘environmental status’ of such areas, care would need to be taken to ensure that currents, tidal ﬂows and wave

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actions would not permit any escape of oil into adjacent areas under most, if not all, weather and tidal conditions. Land transport and infrastructure would also need to be considered. The identiﬁcation of such ‘natural’ areas is likely to be very difﬁcult. In addition, the reaction of local communities and local authorities to being identiﬁed as a ‘sacriﬁce bay’ would be overwhelmingly negative. Irrespective of the type of natural coastline that might be designated, the extent and cost of creating facilities, equipment and staff on some type of standby system would be considerable. Setting aside the question of ‘who would pay’, it is doubtful if the response capability that could be provided in a natural place of refuge could match a modern oil terminal or major seaport. Logically, the best place of refuge option is existing ports and harbours which have all the necessary facilities, services, expertise and contingency plans. Of necessity these ports will have local oil spill trajectory models, a strong environmental database and, possibly, ecological monitoring programmes. Relatively few coastal and harbour areas are likely to have adequate oiled wildlife response planning embedded in the contingency plan. According to a recent IPIECA Report,24 the importance of having an effective plan relates mainly to the public attitude which has been described as ‘Animals soaked in oil arriving on beaches tend to receive a lot of attention in the media and evoke an emotional reaction from the public, especially, if endangered species are involved, or if a unique and internationally protected habitat is threatened’.25 This may be a gap in the planning process that will need to be remedied. There will also be local knowledge of extreme and average sea and weather conditions. It would be wrong to assume that such ports or harbours are areas of little environmental and ecological value. Over recent years, many ports have put considerate effort and taken great pride in cleaning both onshore and waterside conditions.26 Some are almost pollution free, with negligible contamination, as a consequence of extremely efﬁcient and risk-free ship handling and cargo loading and unloading procedures. In Europe, the number of major ports who have accepted the standards and provisions of ECOPORT is growing steadily.27 Most major ports, whether on an open coast or more likely in an estuary or bay, have contiguous and adjacent coastal land uses, including other forms of commercial use and tourism. There might also be zones for aquaculture and conservational sites of interest – all of which will demand protection from a

24 International Petroleum Industry Environmental Conservation Organisation, A Guide to Oiled Wildlife Response Planning, IPIECA Report Series, No. 13 (London, IPIECA, 2004). 25 Ibid. 26 For example, Lower Thames, Southampton, Singapore, Baltimore, and Sydney, but progress has been particularly notable in older parts of Europe. 27 ESPO, ECO-Information, Eco-information in European Ports Final Report (Brussels, ESPO, 1999).

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possible enhanced pollution risk, however unlikely it might appear. Good examples of major oil handling ports that have conservational status in the United Kingdom (UK) are Milford Haven and Sullom Voe.28 Thus even the most efﬁcient port or harbour with excellent anti-pollution and oil spill containment and clean up procedures might not be willing to be so-designated if there is a risk that its ‘clean’ status might be jeopardised. Two signiﬁcant European developments appear to have further relevance to the use of existing harbours as places of refuge. The ﬁrst is the European Union (EU) initiatives to further develop marine and short sea shipment, which has been supported by the ‘Marco Polo’ programme.29 This development also includes reference to port extensions, some of which are for increased container handling facilities. As discussed by Maes and Neumann, the second development that could impinge on these plans for port expansion is the increasing concern for the natural environment.30 The Habitats Directive31 is an especially powerful legislative tool along with other long established conventions, e.g., Ramsar.32 Many of the important habitats and species are coastal and estuarine. Taken together, and under the overarching Natura 2000 Network,33 these different forms of environmental protection put added pressure on ports and harbours to maintain and to improve existing conditions. It is also likely that plans to expand port facilities will meet resistance at the planning stage, and this opposition will cite some of these regional and European regulations and directives. According to Maes and Neumann ‘big infrastructure projects in general and port infrastructure works in particular and problems with permits caused many works to be stopped’.34 It is therefore reasonable to deduce that the addition of ‘place of refuge’ status for damaged tankers with leaking oil will add pressure

28

Ritchie, supra note 23, at 193–204. The Marco Polo Programme was adopted by the EU in 2003 and is designed to reduce road congestion by shifting freight to short sea transport, which, in itself, increases the need for good marine environmental protection systems. 30 F. Maes and F. Newmann, “The Habitats Directive and Port Development in Coastal Zones: Experiences in Safeguarding Biodiversity”, 10 Journal of Coastal Conservation, 2004, 73. 31 EU Habitat Directive: Council Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora (Ofﬁcial Journal L206, 22.7.1992, 7); see also “the Birds Directive”, Council Directive of 2 April 1979 on the Conservation of Wild Birds (79/409/EEC) (Ofﬁcial Journal L103, 25.4.1979, 1). 32 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Ramsar, Iran, 2 February 1971, 11 I.L.M. 969. 33 Natura 2000 Network is a European network of protected sites that represent areas of the highest value for natural habitats, species of plants and animals in the EU. Many sites are coastal; some are marine. For more information on Natura 2000 Network, see <europa.eu.int/comm/environment/nature/home.htm>, 20 June 2005. 34 Maes and Newmann, supra note 30, at 76. 29

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to port and harbour managers to demonstrate that operations and facilities (possibly enhanced) will not be seen to be in conﬂict with the need to further protect habitats and species within the general area of port and navigational interest.

OIL SPILL TRAJECTORY MODELLING The existence of oil spill trajectory models lies at the heart of the effective use of the concept of the passage of a stricken vessel that is spilling oil to a place of refuge. These models exist in two main forms. The ﬁrst relates to ﬁxed offshore production facilities, either sea bed or platforms, with less attention being paid to sea bed pipelines, which have a near-perfect record of integrity and safe operation. The second relates to areas of sea with frequent passage of oil tankers and other vessels. Most of these could be described as ‘approach to port’ models. Most models recognise that the most signiﬁcant element in modelling an oil spill (in addition to type of oil) is an evaluation of surface conditions – the sea and its interface with the atmosphere. Accordingly, at this time, relatively few have three-dimensional capability. The exception might be in major estuaries where a long history of research into estuarine hydrodynamics has added knowledge of three-dimensional ﬂows in and out of the variable prism-shape of a typical estuary. These models are of two types. The ﬁrst uses historical data of currents, winds, sea conditions, etc., to create and test with increasing degrees of conﬁdence the trajectory projections. The second type extends the model to its having real-time capabilities, i.e., actual wind and tidal information can be put into the model. The increasing sophistication of these mathematical models (normally displayed in GIS format) has not obviated the wish to track oil spills by satellite (which have limitations) or by helicopter or ﬁxed-wing overﬂights, as well as ship-based observations. The combination of actual tracking and modelling progressively improves the model, but no one would claim that exact prediction is possible – there are simply too many variables in the equation. The advantage of the concept of towing a stricken ship to a place of refuge, however, is that some level of prediction of route is possible. This is especially true if the incident is further offshore and time is available to calculate the factors that will be signiﬁcant in minimising environmental impact while the vessel is on passage. A nearshore oil spill gives less time but, in theory, the course to the place of refuge and its likely time of arrival could be estimated and fed into the trajectory model. This would assist in deploying preventative actions in coastal waters and coastlines. The principal problem with all oil spill trajectory models (and with oil spill contingency plans) is the dependence on historical and recent baseline information and the key variables (weather, wind vectors, currents, water mass movements, sea bed sediments, bathymetry, wave statistics and seasonal variations),

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which might not be as robust and reliable as the concept assumes. For many areas the data might be secure and has sufﬁcient density, but for other areas information is more sparse and based on shorter time spans. Oil spill contingency planning also needs to record more difﬁcult data, including sea bed, water column and sea surface biological information. Populations, food chains, seasonal movements and sea surface biological information, and conservational status also need to be to-hand; arguably for many areas in Europe this basic knowledge of the marine and coastal environments is surprisingly inadequate. Although new sub-sea investigations and remote measuring technologies are ﬁlling in many of the gaps with remarkable speed and precision, much more remains to be done.

CONCLUSION Despite clear evidence that oil spill incidents are declining in both frequency and volume, accidents can and will occur anywhere in the world. A major industry has developed over the last decade or more which can be described broadly as based on one or all of the following, oil spill planning, prevention, response and clean up. Additional activity has been engendered in assessment and monitoring ‘science’ in both consultancy companies and research institutes. Several major world conferences occur regularly.35 Although incidents have decreased and the environmental impact of many incidents has been much less than feared initially (e.g., ‘Braer’ 1993), public and political pressure to prevent and to counter all forms of marine pollution continues to increase. The concept of place of refuge, which is a long-established and historic code of practice for a ship in distress and in need of assistance, has been given an additional application in response to the fear or risk of pollution. As such, its regulatory framework parallels other environmental legislation and guidelines. In general, these environmental requirements are becoming more demanding, tending, rightly or wrongly, almost to zero-tolerance. The application of integrated coastal zone management worldwide, but especially in Europe, the inexorable trend to deﬁning large areas of marine space as conservational zones and a swing to placing greater emphasis on ‘the environment’ rather than ‘economics’, again notably in Europe, provides two further contexts for considering places of refuge. From the perspective of environmental and ecological science, the main change that has been introduced relates to the need to predict the passage of a

35 Perhaps the best example would be the International Oil Spill Conference (IOSC) that takes place in the United States, alternating between California and Florida. For more information on the IOSC, see <www.iosc.org/>, 20 June 2005.

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stricken vessel to a particular coastal location. There is no change to the random nature of the start of the incident (although the probability of an oil spill in a particular location is known to be reasonably predictable on a statistical risk analysis basis). If a port or harbour is available, the facilities and expertise are positive factors. If a bay or other coastal refuge is used, similar facilities will need to be provided. This degree of planning and foresight should reinforce the need to concentrate appropriate scientiﬁc and environmental knowledge into areas of likely need. Investment in enhanced ‘science’ would help to create a body of pre-existing relevant knowledge, provide better baseline data, improve oil spill modelling capability, and augment any contingency related information databank. The remaining general concern lies in the need to take a vessel, possibly leaking oil, into or along coastal, nearshore and, possibly, estuarine waters, where environmental and other concerns are orders of magnitude greater than further offshore. In addition, the time for natural processes to clean up oil spill pollution efﬁciently and effectively decrease rapidly with the proximity to the coastal zone. Finally, if it is assumed that most of these concerns are overcome if a port or harbour is designated as the refuge, the performance and pride of port and estuarine authorities, e.g., river boards, to bring about great improvements in water quality and other environmental performance indicators also needs to be taken into account. Nevertheless the argument for using a port or harbour rather than a natural bay seems overwhelming. On the other hand, surprisingly long sections of the coastlines of Europe have no suitable ports and harbours, and either a long passage or the provision of a ‘natural’ bay might be the only reasonable option. The west coast and islands of Scotland fall into this category and pose difﬁcult questions for oil spill contingency planning, especially as there are frequent tanker passages along and between these coastlines. Sheltered deepwater bays and sea lochs abound, but all would present signiﬁcant environmental and other coastal zone management problems. Thus, although the ‘places of refuge’ concept has many positive elements, it does pose problems for some coastal areas where neither suitable ports nor bays or inlets with low environmental and/or economic value are readily available.

Chapter 5 Review of Decision-Making by Maritime Administrations for Ships in Need of Assistance – Lessons for Risk Assessment Jens-Uwe Schröder INTRODUCTION The issue of risk is perhaps the most important consideration affecting the decision to grant refuge to a ship in distress. The evaluation of risk goes beyond the success or failure of measures to support ship, crew or cargo in need of assistance or distress. The most important concern maritime administrations confront with a request for refuge is certainly the question of what happens if the endangered ship cannot be assisted any more and develops into a total loss while at the place of refuge and in vicinity of the coastline. If this happens, the environment and the local community around the accident site will be affected, often in a non-negligible way. Other chapters in this book describe such accidents and the consequences for the marine environment. It is usually large tanker catastrophes or accidents where a substantial amount of hazardous substances are released into the sea and have caused pollution and damage to the

93 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 93–117. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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marine environment that are foremost in the minds of coastal communities.1 This surely has an impact on the decision-making process concerning whether or not to grant refuge to ships in need of assistance. The potentially affected coastal communities want to be sure that no decision is taken with regard to shipping that could affect their health and safety.2

1 Tanker accidents with a tremendous temporary environmental impact form a long list – starting with ‘Torrey Canyon’ in 1967 to ‘Tasman Spirit’ in 2003. More recently, and speciﬁcally in relation to the places of refuge issue, the ‘Erika’, ‘Castor’ and ‘Prestige’ accidents are prominent examples of ships that have affected coastal communities. But it is not always large accidents that inﬂuence the perceived risk to coastal communities. Very often smaller accidents can have a signiﬁcant impact, e.g., the collision of ‘Baltic Carrier’ and ‘Tern’ in 2001 in the Baltic Sea between Germany and Denmark where ‘only’ 2,700 tons of fuel oil were released into the sea severely polluting the Danish coast. This accident became the subject of several initiatives by the Baltic Marine Environmental Protection Commission (Helsinki Commission or HELCOM), e.g., the Copenhagen Declaration. See A. C. Brusendorff and P. Ehlers, “The HELCOM Copenhagen Declaration: A Regional Environmental Approach for Safer Shipping”, 17 The International Journal of Marine and Coastal Law, No. 3, 2002, 351; refer in particular to page 379 where the HELCOM follow-up to places of refuge is explained; Declaration on the Safety of Navigation and Emergency Capacity in the Baltic Sea Area (HELCOM Copenhagen Declaration), 10 September 2001, Copenhagen, HELCOM, <www.helcom.ﬁ/ministerial_declarations/en_GB/declarations/>, 20 May 2005. 2 In the aftermath of the sinking of the ‘Prestige’ in 2002, coastal communities and governments along the coast of the Baltic Sea asked themselves the question, what would have happened if the ‘Prestige’ had sunk in the Baltic Sea? The topic was discussed in several meetings and conferences in 2004 (e.g., “Sea Our Future: Maritime Safety Conference, Baltic 2004”, 3–4 May 2004, in Kiel, Germany or “Maritime Safety and Environment in the Baltic Sea”, 13–14 May 2004, in Trelleborg, Sweden). Although places of refuge and granting refuge were not addressed directly at these conferences, support was given to IMO and European Commission efforts to deal with places of refuge. See, “Maritime Safety Proposals, Baltic 2004, ‘Kieler Vorschläge’”, Proposal no. 4, (HELCOM, Helsinki, 2004), at 3 and 11, <sea.helcom.ﬁ/dps/docs/documents/ Maritime%20Group/HELCOM%20MARITIME%203,%202004/8-2.pdf>, 27 June 2005; or see the “Trelleborg Declaration”, point 19, signed by respresentatives from the maritime regions in the southern Baltic Sea, <www.sydsam.se/maritime.asp>, 27 June 2005. The coastal communities made it clear that they want to participate in decisionmaking when unforeseeable risks caused by shipping are dealt with at the central government level. Discussion focussed on the potential impact of a tanker accident and how the local communities could cope with such a disaster. See, for example, B. Forsman, Socioekonomiska Effecter av Store Oljepåslag, Förstudie med Scenario, Rapport till Räddningsverket (Göteborg, SSPA Rapport No. 2003 3294, 2003). We can surmise that a similar attitude would apply to issues arising from granting refuge for ships in distress, which, if out of control, could cause similar dangers to communities as in a ‘normal’ accident.

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As noted in Chapter 8 in this book, granting refuge in cases of potential distress or serious danger has been established as customary law over centuries. Prior to the industrial revolution of the late 19th century, shipping could not damage the environment as it can today with ships carrying thousands of tons of dangerous cargo. As a result, the perceived risk from shipping for coastal communities is much higher today. Nevertheless, granting refuge to ships in danger and distress is not merely a dictate of humanity as far as the saving of lives of crew members affected is concerned. Granting refuge is also a measure to mitigate developing accidents. There are many reports of successful support measures to help ships in distress to repair their damage.3 However, examples like the ‘Erika’ and ‘Prestige’ demonstrate in a very drastic way what the consequences for the environment and local communities can be if refuge is not granted. The question therefore is how can we balance the perceived and objective risks for the environment in the decision-making process to grant refuge to a particular ship? Also, how can we involve all parties concerned in such a process in a meaningful and effective way? The latter question is certainly more difﬁcult to answer than the ﬁrst. One way to deal with both issues is to agree to a transparent, thorough and structured risk assessment methodology before any accident has happened. If such a methodology can be found and is applied in a particular case, risks are accepted in a more objective way. This chapter will undertake a general review of the current practice of granting refuge and implications for risk assessment. The ﬁrst question to address is: What are the purposes of risk assessment and what kinds of methodologies are used? Next, we will consider international standards and guidelines that are related the decision-making process and risk assessment of granting refuge to ships in distress. What kind of guidance is given? How elaborate is the guidance provided for the development of national approaches to deal with decision-making and risk assessment for places of refuge? Finally, we will investigate national approaches to these issues. Is there a common practice in coastal states and, if so, can it be bundled in a meaningful way into a common framework to deal with risk assessment?

3 It is not always the case that only spectacular accidents can be related to places of refuge issues. Many coastal states have a successful record of granting refuge and do this on a regular base. In the Australian state of Queensland waters, 89 ships stopped for repairs in 2001. See, J. Watkinson, “Queensland Safe Havens Guidelines”, Safe Havens and Salvage Conference and Workshop, Sydney 19-20 February 2002, <www.amsa.gov.au/About_AMSA/Corporate_information/AMSA_speeches/Safe_ Havens_and_Salvage_Conference/Documents/Watkinso.pdf>, 21 January 2004.

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RISK ASSESSMENT METHODOLOGIES FOR PLACES OF REFUGE Before the current decision-making practice for ships in need of assistance is reviewed, some background to risk and risk assessment as the basis for decision-making processes should be given. Decisions in general involve a certain degree of risk. A deﬁnition provided by Allen describes, in simple terms, risk as the ‘danger of loss, injury or other adverse consequence’.4 Johnson explains that ‘“danger” can be expressed in terms of probabilities; the likelihood of an adverse consequence occurring’.5 The objective of risk management, therefore, is to mitigate the danger of loss, injury or adverse consequence by minimising the likelihood of its occurrence. Many scientiﬁc disciplines develop risk assessment solutions for applications in their particular ﬁeld of interest. Although risk assessment methodologies to evaluate different kinds of risks vary, they all follow similar principles. For any potential problem or operation to be safeguarded, potential risks ﬁrst need to be identiﬁed. Next, any identiﬁed risks need to be evaluated against risk acceptance criteria. If the assessed risk is higher than risk acceptance criteria allow, effective risk control options need to be applied in order to limit the risk to an acceptable level. Usually the ‘as low as reasonably practicable’ (ALARP) principle6 is applied to the risk level. The ALARP principle recognises that risk can often not be fully eliminated. Eliminating risk is often not feasible or ﬁnancially achievable. It is also often not necessary, since people accept risk as part of daily life. At the same time, risks should not be higher than absolutely necessary. Risk assessment methodologies are usually divided into qualitative and quantitative types.7 Quantitative and qualitative risk assessment methodologies that have been used for maritime applications include Failure Mode and Effect Analysis (FMEA),8 which is recommended in the High Speed Craft (HSC)

4

The Oxford Concise Dictionary (Oxford, The Clarendon Press, 1990). C. W. Johnson, “A Probabilistic Logic for the Development of Safety-critical Interactive Systems”, 39 International Journal of Man-Machine Studies, No. 2, 1993, 333. 6 Guidelines for Formal Safety Assessment (FSA) for Use in the IMO Rule-Making Process, IMO Doc. MSC/Circ. 1023, MEPC/Circ. 392, 5 April 2002 (hereafter FSA Guidelines). 7 See, for example, G. C. A. Dickson, Risk Analysis (London, Witherbys Publishing, 2003); A. Waring, A. I. Glendon, Managing Risk – Critical Issues for Survival and Success into the 21st Century (London/Boston, International Thomson Business Press, 1998). 8 N. J. Bahr, System Safety Engineering and Risk Assessment – A Practical Approach (Philadelphia/London, Taylor & Francis, 1997), 145. 5

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Code;9 Hazardous Operability Studies (HAZOPS);10 Fault Tree Analysis (FTA);11 both HAZOPS and FTA are recommended in the Formal Safety Assessment (FSA) guidelines,12 and Bayesian networks.13 Given the spontaneous nature of decisions involved in any request for a place of refuge, qualitative risk assessment will, in most cases, be the tool that is used as the basis for decision-making during evaluation of the request. Expert judgment is the only source for reasoning under uncertainty unless an administration in charge of the risk assessment process is willing to build up a comprehensive database. In order to build up such a database, one cannot merely rely on the evaluation of maritime casualties in order to identify unsafe acts leading to adverse consequences in the past. In recent years a number of interesting technologies have emerged that can be used as a decision support tool, e.g., the geographic information systems (GIS) and the automatic identiﬁcation system (AIS). GIS covers a wide range of systems (i.e., hardware, software, data) that are used to gather, administer, analyse and show spatial data. Several industries use GIS to combine geographical data with other information relevant for their speciﬁc application. GIS is, for instance, used for maritime environmental protection services and trafﬁc risk analysis.14 Similar applications focussing on places of refuge are possible. AIS technology is used in shipping primarily in order to increase maritime safety by providing a set of data (e.g., ships’ name, gross tonnage, speed, destination, etc.) transmitted and received in short time circles. The data are available in vessel trafﬁc service (VTS) centres and ships. Although most commonly used for navigation purposes, AIS data can also be used for risk assessment purposes.15 Similar to GIS, AIS could be used for places of refuge as well. However, currently there are no projects that look into the opportunities provided by these technologies as decision support tools for the refuge decision-making process.

9

2000 HSC Code – International Code of Safety for High-Speed Craft, 2000, IMO, London, 2001, Sales No. IMO–185 E, ISBN 92–801–5122–3, Annex 4: Procedures for failure mode and effects analysis, at 197–207. 10 Bahr, supra note 8, at 110–115, 116–123. 11 Ibid., at 127–143. 12 FSA Guidelines, supra note 6, at 40. 13 A. Friis-Hansen, “Bayesian Networks as a Decision Support Tool in Marine Applications” , 1 March 2005. 14 J. Shahrabi and R. P. Pelot, Geographic Information Services in Coastal Management, with Applications of Spatial Analysis to Marine Trafﬁc in Canada: Proceedings of the International Management Conference (Tehran, Sharif University, 2003). 15 R. Mueller, A. Zoelder, and F. Hartmann, “Historical AIS data use for navigational aids”, 142 Hansa International Maritime Journal, No. 1, 2005, 14.

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INTERNATIONAL GUIDANCE ON DECISION-MAKING AND RISK ASSESSMENT FOR PLACES OF REFUGE Before further discussing issues linked to decison-making and risk assessment of places of refuge, we must ﬁrst examine relevant international standards and international practices. Keeping in mind the theoretical background to risk assessment, the ﬁrst question to ask is, are there any international principles, rules or guidelines that can be used for decision-making and risk assessment of places of refuge? There are in fact several international legal instruments available that deal with the issue of risk assessment to designating places of refuge. The most prominent instrument is the International Maritime Organisation (IMO) Guidelines for Places of Refuge for Ships in Need of Assistance (IMO Guidelines).16 On a regional level, other instruments/guidelines exist, e.g., the European Union (EU) Directive 2002/59/EC establishing a Community Vessel Trafﬁc Monitoring and Information System,17 which sets standards in the EU area; the Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances (Bonn Agreement), which provides guidance in its Counter Pollution Manual;18 the Baltic Marine Environment Protection Commission (HELCOM);19 and the Protocol concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea20 (hereafter called the Mediterranean Protocol). Each of these instruments will be discussed in more detail below.

16 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/Res. 949, 5 March 2004 (hereafter IMO Guidelines). 17 Directive 2002/59/EC of the European Parliament and of the Council of the 27 June 2002 Establishing a Community Vessel Trafﬁc Monitoring and Information System and Repealing Council Directive 93/75/EEC, Ofﬁcial Journal L208, 5.08.2002 (hereafter EU Directive), at 10. 18 Bonn Agreement, “Bonn Agreement Counter Pollution Manual”, , 15 January 2005. 19 HELCOM Copenhagen Directive, supra note 1. 20 Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea, Malta, 25 January 2002 (in force on 17 March 2004) (hereafter Mediterranean Pollution Protocol), Art. 16, <www.unepmap.gr/Archivio/All_Languages/WebDocs/BC&Protocols/Emergency02_ eng.pdf>, 21 June 2005.

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The IMO Guidelines on Assessment of Places of Refuge IMO Resolution A.949(23) is subdivided into three parts. Part 3 deals only with the assessment of places of refuge. IMO suggests a two-step approach to risk assessment: • generic assessment and preparatory measures regardless of whether requests for refuge are expected or not, and • event speciﬁc assessment when a ship calls for refuge. The generic assessment and preparatory measures can be understood as contingency planning. Coastal states are expected to establish procedures to deal with requests for refuge.21 According to the IMO Guidelines, the generic assessment aims to identify advantages and disadvantages of different areas along the coastline that could be used as places of refuge. The generic assessment should take several issues into account:22 • potential causes for requests for refuge (e.g., collisions, damage to the ship) • assessment of risks related to the potential cause for requests for refuge (e.g., environmental and social factors, natural conditions) • emergency response and follow-up actions (e.g., lightering, salvage) Another important issue in preplanning is communication. Coastal states are expected to nominate one central maritime assistance service (MAS).23 The MAS does not necessarily have to be the administration/organisation in charge of granting or refusing refuge. However, for the purpose of communication with the ship in distress, one central communication point needs to be established. The event-speciﬁc assessment is carried out when a speciﬁc request for refuge is made by a ship or company. The IMO Guidelines suggest several issues that should be considered to limit the risk to the marine environment: • Assessment of the probability that the ship will develop into a serious threat to the environment should be undertaken. It is also important to consider what will happen if refuge is not granted. Will the ship continue its journey? Will it cause a greater catastrophe somewhere else? This scenario should be avoided. In order to get the information needed to carry out such an assessment, data about the seaworthiness of the ship are needed. Data can also be obtained through expert analysis, i.e., through an onboard inspection if the situation permits.

21 22 23

IMO Guidelines, supra note 16, s. 3.2. Ibid., Appendix 2. Ibid., s. 3.3.

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• In order to limit potential ﬁnancial damage, the coastal state should also take insurance and compensation for damage related issues into consideration before granting refuge. • If refuge is granted, lines of communication have to be established (e.g., designation of a company representative in the coastal state) and responsibilities assigned to all parties involved (e.g., agreement by the master and company of the ship to the proposals of the coastal state/salvor to proceed or to be brought to a place of refuge). The IMO Guidelines point out that there is no obligation to grant refuge. However, refuge should be granted whenever reasonably possible in order to limit potential dangers of a ship in distress being forced to continue its voyage.24 Granting refuge should also not be understood as a substitute to the obligations of coastal states to provide assistance for persons on board ships in distress.25 The place of refuge guidelines cannot be applied to those cases. In summary, IMO, with Resolution A.949(23), provides a comprehensive document to assist coastal states to build up a framework to deal with granting or refusing refuge to ships in distress. The Guidelines are not as elaborate as the guidelines for other relevant safety issues, e.g., the FSA Guidelines.26 This is to be expected, considering the relatively short time the issue of granting refuge has been discussed. It also has to be observed that the Guidelines represent the lowest common denominator among IMO member states. Some member states, e.g., Australia, have long experience in granting refuge and have therefore developed comprehensive guidelines to assess risks involved in granting refuge.27 Other member states, e.g., Spain, have only recently developed comprehensive guidelines.28 However, several IMO Member States still have not addressed the problem of assessing risks for granting refuge. Those states might take these Guidelines into account as they develop national guidelines. Therefore, it can be expected that the IMO Guidelines will be expanded as more states start to work on the issue and bring their experiences back to IMO. This may enable IMO to develop a more comprehensive framework for places of refuge, comparable to the framework provided for FSA. The IMO Guidelines remain, for the time being, the most comprehensive internationally available guidelines on this issue.

24

Ibid., s. 1.6. Ibid., s. 1.13–1.14. 26 FSA Guidelines, supra note 6. 27 National Plan Management Committee, National Maritime Places of Refuge Guidelines (Canberra, National Plan Management Committee, 2002). 28 G. Gomez Barquin, “Methodology for Risk Assessment in Coastal Zones in Spain”, International Workshop on Places of Refuge, 11 December 2003, University of Antwerp, <www.espo.be/news/2003/events/Gonzalo%20Gómez%20Barquín.pdf>, 15 January 2005. 25

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EU Directive 2002/59/EC EU Directive 2002/59/EC29 is complementary to the requirements of IMO Resolution A.949(23). In the preamble,30 the non-availability of places of refuge is considered as serious for ‘consequences in the event of an accident’. Member States of the EU are furthermore requested to ‘draw up . . . plans to accommodate, in the waters of their jurisdiction, ships in distress’ taking into account the IMO Guidelines.31 Apart from this reference to the IMO Guidelines, no further speciﬁc guidance is given as far as direct risk assessment is concerned. The Directive instead puts additional requirements on EU Member States to ensure compliance: • Member States should inform the Commission of measures taken with regard to Article 2032 • Member States are asked to carry out inspections in order to ensure effectiveness of measures taken33 Although no direct guidance is given for risk assessment, the Directive does address a relevant issue for further consideration when risk assessment for places of refuge is carried out. It is not only the ship’s master, owner or salvor who can ask for refuge. According to the Directive, coastal states can, in order to protect their marine and coastal environment,34 ‘instruct the master to put in at a place of refuge in the event of imminent peril, or cause the ship to be piloted or towed’.35 EU Member States have to comply with this Directive by 31 December 2009.36 They have to report on the progress made in its implementation on 5 February 2007.37

Regional Agreements As mentioned above, several regional agreements provide principles, rules or guidelines to support environmental protection and facilitate emergency response in case of accidents at sea, but none go beyond the IMO requirements.

29 30 31 32 33 34 35 36 37

EU Directive, supra note 17, Arts. 20 and 27. Ibid., Preamble, para. 16. Ibid., Art. 20. Ibid., Art. 20, para. 2. Ibid., Preamble, para. 18. Ibid., Art. 19. Ibid., Annex 4. Ibid., Art. 26, para. 1. Ibid.

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The Bonn Agreement provides, among others, for a Bonn Agreement Counter Pollution Manual. Chapter 26 of this manual deals with places of refuge.38 HELCOM also makes reference to the IMO Guidelines.39 The Mediterranean Protocol does not speciﬁcally refer to the IMO Guidelines, but underlines the importance of the availability of places of refuge.40 Although several legal instruments have been adopted at the regional and international levels that require or promote granting refuge to ships in distress, the topic of risk assessment methodologies to be used is not addressed in great detail. IMO Resolution A.949(23)41 provides the most comprehensive list of issues to be taken into consideration during the risk assessment process. However, it does not suggest a formal methodology to be applied for the risk assessment. The next question to consider is how coastal states deal with the risk assessment in the absence of detailed guidelines.

CURRENT INTERNATIONAL PRACTICE TO DEAL WITH REQUESTS FOR REFUGE As noted earlier, some coastal states have a long and successful record in granting refuge to ships in distress. Before we consider any proposals for a risk

38 Chapter 26 of the “Bonn Agreement Counter Pollution Manual”, supra note 18, was updated in October 2004 in response to IMO Resolution A.923(23) and EU Directive 2002/59/EC. It provides guidance when refuge should be granted to ships in need of assistance. It also suggests a two-fold approach – contingency planning and an event-speciﬁc assessment (the list of issues to be observed in both steps are similar to the IMO Guidelines). Under point 26.1.4 the Manual acknowledges that ‘the designation and use of places of refuge could encounter local opposition and involve political decisions. . . . Such a decision can only be taken on a case-by-case basis, with due consideration given to the balance between: (a) the advantages for the affected ship and for the environment resulting from bringing the ship into a place of refuge; and (b) the risk to the environment resulting from that ship being near the coast’. 39 HELCOM Cophenhagen Declaration, supra note 1, in particular to the suggested measure XII, ‘To ensure places of refuge’, where governments of contracting parties are required to support the relevant initiatives of EC and IMO in this respect. Furthermore, governments of contracting parties are requested to draw up plans to accommodate ships in distress and to safeguard their immediate transfer to such a place of refuge. In addition, the need for exchange of information between contracting parties is underlined. 40 Mediterranean Pollution Protocol, supra note 20, Art. 16. A number of articles in the Protocol have direct or indirect inﬂuence on risk assessment for places of refuge. Art. 16 is the only article speciﬁcally dedicated to places of refuge. This article strengthens co-operation on a regional and subregional level. 41 IMO Guidelines, supra note 16.

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assessment methodology, we need to review the current practice relating to granting refuge. The main questions to be answered are: is there an established common practice and, if so, can this be used as or extended to a common framework of risk assessment for places of refuge? In order to answer this question this author undertook an international survey. At ﬁrst a ‘pre-study’ was made to identify the administrations in charge of granting refuge. This was not always deﬁnitively possible since responsibilities are often shared and decision-making structures are not always easily traceable. Therefore a compromise had to be made. If the lead administration in charge of granting refuge could not be identiﬁed, the maritime safety administration was considered the initial point of contact as far as the survey is concerned. Next, a questionnaire was developed aiming at gathering information about the practice of granting refuge in the particular state. Apart from collecting data about responsibilities, information about guidelines and approaches to granting refuge to ships in need of assistance were required as well. The questionnaire was distributed to the identiﬁed or assumed lead administration in charge of granting refuge in 82 states. Completed questionnaires were received from respondents in 27 states.42 In all cases information was provided from the competent administration in charge of granting refuge. Participants came from senior and middle management. In cases where information was provided from middle management participants, permission was usually obtained from higher decision-making levels to participate in the survey. In one case (Germany), the information was obtained through a telephone interview. Although the information provided was all in all very detailed, most of the survey participants preferred not to be quoted directly. In addition to the input provided through the completed questionnaires, high-ranking ofﬁcials in three additional states (who do not want to be quoted) declared the issue to be a high priority, but they had not yet adopted an appropriate framework and could not provide input to the study. This at least can be considered as an indication for the momentum created by the IMO discussions on granting refuge to ships in need of assistance. The questionnaire was divided into ﬁve sections – general information, past practice with granting refuge, legal framework for granting refuge, guidelines for granting refuge, and follow-up to IMO Resolution A.949(23). The responses to each section will be examined in turn below.

42 Survey respondents from authorities responsible for granting refuge participating in this survey came from: Australia, Bolivia, Cambodia, Canada, Chile, China, Denmark, Finland, Germany, Haiti, Iceland, Iran, Ireland, Jamaica, Lebanon, Myanmar, Netherlands, New Zealand, Philippines, Romania, Singapore, Slovenia, South Africa, Sweden, Turkey, United Kingdom, and the United States. The author wishes to express his gratitude for the effort and time taken by the participants to complete the questionnaire.

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General Information about Granting Refuge This section of the questionnaire dealt with the issue of identifying the administration in charge of granting refuge and the level of decision-making when refuge is asked for by a ship in distress. The data provided are summarised in Figures 1 and 2 below. The survey respondents provided information that allows for the conclusion that in the majority of states that were covered by this survey, the maritime safety administration is in charge of the process of granting refuge (see Figure 1). Apart from the maritime safety administration, coast guards and port authorities are most commonly involved. Fourteen respondents (52 percent) indicated that only one administrative body is involved in making the decision to grant or refuse refuge. Eleven respondents (41 percent) stated that decisions are made in consultations between several administrative bodies. From the responses, it appears that only one state has delegated all power to deal with places of refuge to the environmental protection authority. Reading the comments to the question leads to the conclusion that granting refuge to ships in need of assistance is driven by experience. Comments made by respondents conﬁrm that there is no generic system for assigning general responsibility for granting refuge (e.g., some respondents indicated that local port committees are actively involved in the preparation of the guidelines for granting refuge). The second question focussed on the administrative level that had authority to make decisions about granting or refusing refuge. The results are summarised in Figure 2 below. Figure 1: Summary of the administrative units responsible for granting refuge

Environmental Protection Authority 4 (15%)

Other 4 (15%)

Port Authority 12 (44%) Navy 3 (11%)

No comment 2 (7.5%)

Maritime Administration 16 (59%)

Coast Guard 9 (33%)

Note: Multiple choices were allowed and used by the participants to answer this question. The percentages shown in diagram relate, however, to the 27 participating states, not to the overall number of answers.

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Figure 2: Summary of the the decision-making level in granting refuge

Others 4 (15%)

No comment 2 (8%)

Cabinet level 1 (4%) Ministerial level 10 (37%)

Municipal level 8 (30%) Centralised administrative level 15 (55%)

Note: Multiple choices were allowed and used by the participants to answer this question. The percentages shown in diagram relate, however, to the 27 participating states, not to the overall number of answers.

The data in Figure 2 conﬁrm the ﬁndings of Figure 1. Since in the majority of states surveyed the central maritime safety administration is given responsibility for decision-making regarding refuge, it is logical that decisions are also made at the centralised administrative level. As in responses to the ﬁrst question, it seems that there is no speciﬁc trend concerning level of authority for decision-making. The data could, however, be interpreted to indicate that some streams exists – either to have a decision from the maritime safety administration (or the coast guard) itself, or to deal with granting refuge on a local level, i.e., to involve the port authority. Eleven respondents (41 percent) declared that decisions about granting refuge could involve several administrative levels. Out of these 11 respondents, two indicated that decisions could be made on any level, from municipal to ministerial depending on the potential danger expected. Four respondents declared that decisions are made at the ministerial and central administrative level. Five respondents declared that decisions are made at the centralised administrative or municipal level. Again, as in the ﬁrst question, it seems that due to different experiences, no speciﬁc trend can be identiﬁed. It is, however, notable that only three respondents indicated that their states had created a centralised response command that deals exclusively with granting refuge to ships in need of assistance, as well as with responding to pollution off the coast.

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Past Practice Questions about past practices were introduced to determine if states with practical experience in granting refuge have different approaches to the matter than states where guidelines have been prepared without any previous experience. Twenty respondents (74 percent of survey participants) indicated that the responsible administration(s) in their states has been asked to grant refuge. All 20 states that have been confronted with requests by ships in need of assistance have granted refuge at some time. This does not mean that the responsible administration(s) in those states have not refused to grant refuge on other occasions. Only one respondent speciﬁcally mentioned this in its comments. The following questions focused on occasions when refuge was granted, results, changes of procedures as a result of granting refuge, reasons for not granting refuge, and speciﬁc conditions imposed on a ship when refuge was not granted. When asked on what occasions refuge is granted, with two exceptions (one respondent did not comment and another did not have any available data), all respondents replied, when damage to the ship is expected. Ten respondents (50 percent) indicated that the responsible administration(s) in their states granted refuge when damage to the ship, the cargo and loss of life was expected. Five respondents (25 percent) indicated that the responsible administration(s) in their states does not provide refuge when only the cargo is in danger. Two respondents (10 percent) did not tick the option ‘to avoid loss of life’ as a reason to provide refuge, and instead pointed out that this issue falls under the obligations of search and rescue in their states. The answers to this question can also be interpreted as an indicator that it is often not practical to distinguish between ships in need of assistance and ships in distress, where different international obligations apply. The results of granting refuge were also quite diverse. Only ﬁve respondents (25 percent) indicated that no damage to the environment had occurred as a result of their past experience in granting refuge. Nine respondents (45 percent) declared that minor damage had occurred in some instances when refuge was granted in their states. Only two respondents (10 percent) had cases in their states where granting refuge was unsuccessful and created major problems/pollution. Four respondents did not comment on the question or did not have available data. Although only respondents in states that had had a negative experience (minor and major damage to the environment) were asked to indicate whether they changed their procedures in response to such experiences, 16 respondents provided feedback. Only two respondents (12 percent) indicated that the responsible administration(s) in their states changed their procedures, nine (57 percent) indicated that the responsible administration(s) in their states did not, and the remaining ﬁve respondents (31 percent) did not comment or did not have appropriate data. For the two adminsitrations that changed their procedures, the respondents indicated that they did not change the whole system.

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They reviewed the system according to the shortcomings identiﬁed in the cases in question. The number of responses and the level of detail of the question does not allow for general statements about whether or not a regular review of existing procedures is carried out in order to improve the system of granting refuge. Nine respondents provided reasons why refuge would not be granted. Eight respondents indicated that the responsible administration(s) in their states would not grant refuge if the level of risk involved could not be identiﬁed in an orderly way. One respondent did not want to comment on the issue. These responses indicate that an accepted risk assessment methodology would be an advantage in facilitating decisions about requests to grant refuge. Seventeen respondents answered the ﬁnal question in this section, which dealt with speciﬁc conditions imposed on ships when refuge was not granted. Ten respondents indicated that speciﬁc conditions (e.g., certain minimum distance to be kept from the shore to minimise the impact of a potential pollution) could be imposed on a ship by the responsible administration(s) in their states. Five respondents indicated that no speciﬁc conditions are imposed on ships where refuge was refused, and two respondents did not want to comment on this issue.

Legal Framework The intention of the questions regarding the legal framework was to ﬁnd out if there are obligations under domestic law to deal with granting refuge. Further, would such obligations have an impact on the overall system of a coastal state to grant or refuse refuge? Seventeen respondents (63 percent) indicated that the responsible administration(s) in their states have a policy for granting refuge. One respondent speciﬁcally mentioned that a policy is under development because of IMO Resolution A.949(23). Although the other respondents did not speciﬁcally mention current developments in their states, comments to other questions allow for the conclusion that the responsible administration(s) in more than one other state are currently developing a policy to deal with this issue. Concerning their policy to grant refuge, a majority of 11 respondents (64 percent) conﬁrmed that the objective of the responsible administration(s) in their states is to avoid damage to persons, the ship, the cargo and the environment; three respondents (18 percent) referred to damage of persons, ship and cargo only. One respondent pointed out that damage to persons is covered by other international legal instruments and that its policy therefore only focuses on ship, cargo and environment. Thirteen respondents (48 percent) have domestic legal obligations to grant refuge to ships in need of assistance. This is an interesting ﬁnding as it was assumed by the author prior to the survey that the development of a policy

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would be the result of a domestic legal obligation to grant refuge to ships in need of assistance. The author therefore expected to ﬁnd fewer policies than domestic legal requirements. Unfortunately only two examples of policies were attached to the returned questionnaires so that further comments on the relationship between domestic legal requirements and policies, i.e., focus, degree of detail, etc., cannot be made.

Guidelines For the purposes of the analysis in this chapter, the most important issue is whether or not guidelines are available for granting refuge. Fifteen respondents (56 percent) conﬁrmed that the responsible administration(s) in their states had such guidelines. Two out of the 12 remaining respondents indicated that guidelines are currently under development. The 15 respondents from states that already had guidelines in place were asked to answer several more questions. Figure 3 summarises their responses concerning preconditions to granting refuge, e.g., vessels must be below a certain maximum age. The majority of respondents declared that no speciﬁc preconditions have to be met by a ship asking for refuge in their states. The two respondents that indicated that the responsible administration(s) in their states required a ship to be

Figure 3: Overview of preconditions for granting refuge in states with guidelines Specific ship types only 0%

Maximum age 0%

Not for specific cargoes 2 (13%) Not for specific flags 2 (13%)

No specific criteria 8 (53%) Ship in specific state 2 (13%) None of the above, but ... 3 (20%)

Note: Multiple choices were allowed and used by the participants to answer this question. The percentages shown in diagram relate, however, to the 15 participating states with guidelines for granting refuge, not to the overall number of answers.

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in a speciﬁc condition referred to a damage assessment that would be carried out before granting refuge is considered. Two respondents indicated that the responsible administration(s) in their states exclude speciﬁc cargoes citing imprecise risk assessment methods that do not address all potential consequences of an accident involving these cargoes. Therefore, they prefer not to deal with ships carrying these cargoes. For the two responsible administrations excluding ships ﬂying speciﬁc ﬂags, the respondents made reference to port state control statistics. If such ships have experienced port state control detentions, they will not be considered for refuge. The three respondents’ administrations that referred to preconditions other than the ones listed in the questionnaire made reference either to appropriate insurance coverage limiting the level of risk or (in one case) made reference to a system in which local communities are involved in setting up the criteria for granting or refusing requests for refuge. Several questions focussed on the basis for decisions about granting refuge. Fourteen (86 percent) out of the 15 respondents from states with guidelines indicated their responsible administrations prefer surveys (i.e., navigational, engineering, naval architectural, diving and others) if time and the situation permit. These 14 respondents also indicated that their responsible administrations would prefer multiple surveys. Seven (47 percent) respondents indicated their responsible administrations wanted to receive as much information as possible, i.e., the full spectrum of surveys offered as options in the questionnaire should be carried out if time permits. Responses to the option of document review as a basis for granting refuge were not as deﬁnite. Only seven respondents (47 percent) conﬁrmed that any kind of document review is carried out. Two of these respondents made reference to the classiﬁcation society or the insurance company. Seven respondents indicated that the responsible administration(s) in their states do not include a document review in their decision-making processes (one respondent explicitly pointed out that a document review might consume a large amount of time, which would reduce the chances of success in providing assistance). One respondent did not comment on the issue. It is common practice to involve experts in the decision-making process to grant or refuse refuge. All responsible administrations in states surveyed involved experts; 14 respondents (93 percent) indicated that the responsible administration(s) in their states not only rely on expertise from their pool of internal experts, if external experts (e.g., salvors, class experts) are available and the situation requires and permits, they will consult with them. Twelve (81 percent) out of the 15 respondents included additional information (e.g., history of the ship, the company or other information) in their administrations’ decision-making process. Six respondents (40 percent) declared that the responsible administration(s) in their states consider all available additional information valuable. Only one respondent out of 15 indicated that no additional information is considered during the decision-making process.

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The last question in this section focussed on the option of an assessment on another basis. Only one respondent indicated that this would be applicable. Given its speciﬁc geographic situation, hazardous cargo and potential consequences resulting from an unsuccessful attempt to provide refuge for a ship in need of assistance carrying hazardous cargo will be assessed speciﬁcally if a request for refuge is made.

Follow-up to IMO Resolution A.949(23) IMO Resolution A.949(23) provides for an initiative to review the overall approach towards granting refuge in order to allow for an efﬁcient framework to deal with such requests. Consequently, the questionnaire included a section to determine likely responses to IMO initiatives. Apart from questions relating to their general philosophy on granting refuge and changes envisaged in the current system, respondents in states that did not have guidelines were asked what their guidelines will most probably look like. Figure 4 sets out the responsible administrations’ different philosophies to granting refuge. This survey cannot conﬁrm that one speciﬁc methodology dominates throughout the community of states surveyed. A minority of responsible administrations in states surveyed provide dedicated places of refuge and also grant refuge in other locations based on a previous in-depth inventory of their coastline (e.g., according to geographical suitability, availability of pollution combating materials and resources, etc.). Others do not have dedicated places of refuge and consider all requests on a case-by-case basis while keeping the Figure 4: Overview of the different philosophies regarding granting refuge Under development 4 (14%)

Dedicated places used only 1 (4%)

Case-by-case based on previous inventory 7 (25%)

No comment 3 (11%)

Others 5 (18%)

Combination of both 8 (28%)

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speciﬁc features of their coastline in mind. The majority of the ﬁve respondents, which ticked ‘Others’ in this question, commented that the responsible administration(s) in their states decide on a case-by-case basis but have not carried out a dedicated coastline inventory that could serve as a basis for the decision-making process. Figure 5 shows the responses of the 27 survey participants to the question concerning changes in the system to grant refuge as a follow-up to IMO initiatives. A majority of 12 respondents (44 percent) indicated that the responsible administration(s) in their states do not intend to change their current system. Five (19 percent) respondents pointed out that the responsible administration(s) in their states did not have a system, which does not mean they intend to implement such a system. The seven (26 percent) respondents that opted for ‘None of the above’, provided comments leading to the conclusion that the responsible administration(s) in their states has either started to develop a system or have systematised and documented their previous system. Only three (11 percent) respondents indicated that the responsible administration(s) in their states has amended their guidelines accordingly. The remainder of the questionnaire was designed to ﬁnd out what the 12 respondents from states whose responsible administrations do not have guidelines thought their system to grant refuge could look like. These questions were similar to those posed in Section 3 of the questionnaire where 15 respondents from states with guidelines provided feedback about their procedures. The ﬁrst question focussed on preconditions to be met by ships seeking refuge. Out of the 12 respondents, ten (84 percent) indicated that no speciﬁc preconditions would have to be met. Out of the 15 respondents from states with Figure 5: Changes in the system to grant refuge as a result of the IMO initiative There was no system before 5 (19%) None of the above 7 (26%)

Changed guidelines 0%

Changed preconditions 0% Changed general approach 0%

Other changes 3 (11%) No changes 12 (44%)

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guidelines, only 48 percent of respondents had ticked this option. Only one respondent speciﬁed that certain preconditions have to be met, but they will be determined on a case-by-case basis. The second question focussed on surveys to be carried out as an additional measure to support the decision-making process for granting refuge. Seven (58 percent) respondents indicated that surveys could be carried out if time and situation permits. Six respondents preferred multiple surveys, but only one respondent wanted to make use of all options (86 percent of respondents from states with guidelines opted for multiple surveys; 47 percent opted for as many as possible). The next question focussed on document review. Five (42 percent) respondents would prefer to review certain documents prior to making a decision to grant refuge. (This is in line with the 47 percent of respondents from states with guidelines provided to the responsible administration(s) that would include a document review when necessary.) A further question focussed on the involvement of expert judgement in the refuge decision-making process. Ten (83 percent) respondents declared that experts could be involved (100 percent of the respondents from states with guidelines in place have involved experts in the decision-making process). Three of the ten respondents want to rely on experts from their own administration only. Two respondents did not comment on this issue. Regarding the importance of ‘other information’ to be included in the decision-making process, only one (8 percent) respondent out of 12 indicated that this is of no importance. Two respondents did not comment on the issue, but nine (75 percent) indicated that this information would be considered if necessary. This is in line with the answers provided by respondents from states with guidelines.

Discussion of the Questionnaire Results After reading the previous sections, a natural reaction would be to question the extent, if at all, to which the survey data represents the current practice of granting refuge to ships in need of assistance and, if so, what trends can be identiﬁed from the data. Before discerning and summarising trends, if any, the question about the validity of the data should be considered. The survey introduced in this chapter (hereafter referred to as the WMU survey) is the second global survey on this issue carried out within the last ﬁve years. There is no evidence that similar surveys have been carried out earlier. The only comparable survey is that carried out by the Comité Maritime International (CMI)43 in 2002 (hereafter referred to 43

Comité Maritime International (CMI), “Places of Refuge – Report of the CMI to the IMO”, CMI Yearbook 2002 (Antwerp, CMI, 2003), at 117.

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as the CMI survey).44 Twenty-four national member associations of CMI answered a questionnaire on the legal framework and experience with places of refuge. Twelve states that were covered by the CMI survey were also covered by the WMU survey. The difference between both surveys is that the CMI survey approached member associations in the states surveyed whereas the WMU survey contacted the assumed responsible administration in charge of granting refuge in the states surveyed. It is therefore no surprise that although both surveys differ signiﬁcantly from each other in focus and scope, certain similarities can be observed. This applies speciﬁcally to questions about the development of contingency plans, which have a close relationship to guidelines on granting refuge. However, the overlap between the two surveys is not signiﬁcant; therefore, detailed cross-references cannot be established. There is only a conﬁrmation that answers to the few similar questions pointed in the same direction in both surveys. In the absence of more detailed studies, both surveys represent an appropriate sampling of current approaches to granting or refusing refuge to ships in need of assistance. Although the return rate of questionnaires in the WMU survey was nearly 33 percent, one has to be aware that only 27 countries were surveyed. The results, as mentioned, were quite diverse. There is no global system for granting refuge. A number of national and regional approaches exist whose variety was difﬁcult to cover in the WMU survey. Nevertheless the ﬁndings of the WMU survey should be summarised as follows: • Refuge is granted mainly at a centralised administrative level, by one administrative body, only in the affected coastal state. However, in a number of states shared responsibilities between different administrations still exist. The WMU survey also identiﬁed several states where decision-making occurs at the municipal level (e.g., when the port authority is involved). In this respect it is notable that, since the 2002 CMI survey, more coastal states have adopted a structure with one dedicated central response point for requests for refuge with direct access to the highest decision-making level in the government, depending on the severity of the incident in question. • The distinction between refuge for ships in need of assistance and refuge for ships in distress is not always made by coastal states confronted with a request to grant refuge. It seems that responsible administrations for granting refuge in several states do not distinguish between obligations falling under ‘search and rescue’ and ‘simple’ requests for assistance (e.g., repairs). This raises the question of whether this is caused by lack of understanding or

44 CMI carried out another survey in 2003 (refer to: Places of Refuge, Summary of Responses to the CMI’s Second Questionnaire, IMO Doc. LEG 87/7/2, 16 September 2003) that focussed entirely on liability issues; these issues are examined in more detail in Chapter 11. Given its subject matter, the 2003 CMI survey cannot be considered for comparative purposes in this chapter.

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simply because it is often impractical to distinguish between these issues when refuge is requested. Coastal states confronted with requests for refuge prefer to receive as much information as possible to evaluate the risk involved in granting refuge in a speciﬁc case. A structured approach for risk assessment is vital in the decision-making process to grant or to refuse refuge. Responsible administrations in charge of granting refuge in several coastal states want to receive all available information and prefer to carry out surveys to allow for an in-depth risk assessment. Due to different and complex experiences in the past, it seems that states prefer a case-by-case approach to maintain ﬂexibility in dealing with refuge requests. Respondents from responsible administrations from states with experience pointed out that they are afraid of improper risk assessment and have therefore developed detailed guidelines and procedures to deal with refuge requests. Imprecise risk assessment methodologies, which could lead to incorrect risk assessment, are perceived as a signiﬁcant threat and could lead to the refusal of a request to grant refuge. Respondents from responsible administrations pointed out that they would refuse refuge if the incident in question is too complex and the risk involved is difﬁcult to assess. Administrations with the responsibility to grant refuge that have dealt with the issue of granting refuge have developed more structured approaches for decision-making than those without practical experience. Responsible administrations that have granted refuge in the past have speciﬁed preconditions to be met by ships asking for refuge and consider it essential to gather more information prior to making a decision concerning a request for refuge. IMO initiatives stimulate the development or amendment of existing approaches towards granting refuge. Although a majority of respondents indicated that they would not change their systems as a result of the IMO initiatives, several indicated in their comments that the IMO initiatives formed the basis for reconsidering existing systems or the development of new procedures. Member States of the European Union have to comply with the relevant European legislation and, as such, ‘draw up, taking into account relevant guidelines by IMO, plans to accommodate, in the waters under their jurisdiction, ships in distress’.45

The WMU survey did not ask any questions about the helpfulness of the current IMO Guidelines. The responses concerning national guidelines lead to the conclusion that no uniform international practice exists on how to assess risk before granting refuge. Precise guidelines could be helpful for a number of reasons. Can this be achieved by a stricter and more harmonised international approach? Is it desirable to have one international approach only or can

45

EU Directive, supra note 17, Art. 20.

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regional/subregional approaches accommodate the safety requirements of all the stakeholders in the coastal and marine environment? The ﬁnal section of this chapter will examine possible improvements to guidelines for risk assessment for places of refuge.

CONSIDERATIONS FOR A FRAMEWORK FOR RISK ASSESSMENT TO GRANT REFUGE Although the current system for granting refuge works in many states, there are administrations in coastal states that prefer not to deal with the issue. Also, as mentioned earlier, especially in Western Europe,46 coastal communities voiced their concerns about maritime safety and the issue of granting refuge. How can a framework for granting refuge be designed to accommodate the doubts and concerns of these reluctant states and how can local stakeholders be better integrated in the decision-making and risk assessment processes? A complete discussion of this question is not within the focus of this chapter. However, anticipating future discussions on places of refuge, it is worth pointing out the issue as to whether a more structured and strict approach should be applied instead of the event speciﬁc, experienced-based decision-making process currently used by states. An issue that has not been discussed so far is the appropriate integration of all stakeholders in the decision-making process. According to Cicin-Sain and Knecht,47 separate views on the coastal and the ocean zone still exist. Whereas the ocean zone is very much dominated by maritime administration issues (e.g., shipping and pollution control) the coastal zone is dominated by issues such as biological, environmental, tourist and other uses. The borderline between ocean and coast has unfortunately also created a borderline for responsibilities. Whereas maritime administrations are responsible for ship registration, maritime safety standards and the safety of navigation in the territorial waters, they are usually not involved in shore-based issues, such as nature preservation areas, tourism, port development, etc. It is therefore quite complicated to deal with issues like places of refuge within such a framework where granting refuge clearly goes beyond one traditional ocean use. This was also reﬂected in the answers of the survey. Whereas maritime administrations on a central level still dominate decision-making for places of refuge, more and more countries have acknowledged the advantages of bringing together all stakeholders

46

Sea Our Future, supra note 2. B. Cicin-Sain and R. W. Knecht, Integrated Coastal and Ocean Management (Washington & Covelo, Island Press, 1998). 47

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involved in ocean and coastal zone use. The frameworks, methodologies and approaches suggested in integrated coastal zone management (e.g., in CicinSain and Knecht)48 are intended to allow for such an integrated approach. The example of the United States, where port committees exist that provide for discussions of all relevant port issues, including guidance on how to deal with granting refuge, can be considered as an example of good practice in this respect. (See Chapter 19 for a discussion of the American approach to places of refuge.) As pointed out above, there are international expectations to develop structured systems for handling requests for refuge. The IMO Guidelines include a list of issues to be considered in risk assessment. However, no guidance is provided on assigning priorities to these issues nor are procedures suggested on how the risk assessment should be carried out. The WMU survey shows that the responsible maritime administrations in several states prefer to maintain a ﬂexible system and do not issue speciﬁc guidelines so that they can make decisions on a case-by-case basis. Is this is an efﬁcient approach? Would a more structured and documented approach be more beneﬁcial because it produces clarity and predictability? Apart from guidelines, several states have developed national contingency plans to deal with oil pollution. These contingency plans outline basic procedures to be followed in the event of a spill and will, of course, not apply to ‘simpler’ requests concerning ships in need of assistance. Finally, it will depend on the knowledge base available in the individual coastal state whether or not a request for refuge can be handled by in-house experts or if the request should be treated more formally. Prerequisites for formal approaches are, in any case, more detailed databases on accidents combined with data about coastal zone vulnerability. A more thorough discussion on this issue is needed. From a scientiﬁc point of view, it is tempting to suggest a structured risk assessment approach consisting of a decision support tool (using either computers or checklists) based on a detailed inventory of the coastline characteristics. Many states that have developed a national system based on their experience would not welcome such suggestions as they fear they would lose ﬂexibility if a rigid framework was adopted at the international level. As noted earlier, a number of coastal states have not developed decision support tools based on coastal vulnerability data in combination with data about impacts of previous accidents. Although oil spill trajectory modelling and sensitivity mapping practices are suggested and practised in several states, detailed accident data are not always available so that more elaborate decision support tools can be developed by combining both environmental and accident data. This should not, however, prevent the international community from looking into the poten-

48

Ibid.

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tial of modern computer-based risk assessment tools to support the refuge decision-making process. For example, GIS allows for enhanced spatial risk assessment. There will be challenges to the adoption of a risk assessment framework at the global level. The preconditions for a more structured data-based risk assessment framework are too unequal across the world. In addition, traditionallygrown national systems have often proven their efﬁciency in dealing with emergency situations. It is not easy and probably not always justiﬁed to start discussions about potential improvements to such systems simply for the sake of technical progress. Therefore, we will most likely face a situation where various regions develop different systems. An important role for IMO is to monitor these developments and to harmonise them as much as possible to facilitate the goal of ensuring that a reliable global system for granting refuge to ships and crews in need of assistance is available when justiﬁed.

Chapter 6 Port Perspectives and Environmental Management Considerations Rosa Mari Darbra Roman* INTRODUCTION Ships have experienced distress situations since the earliest days of the shipping industry. Whenever the crew was unable to deal with the problem successfully at sea, outside assistance was needed and the ship had to be brought into a place of refuge. A maritime tradition of providing shelter to ships that needed refuge thus developed. There are many examples of ships in the worst possible state being welcomed into ports around the world. But at some point in the latter part of the 20th century, damaged ships became less welcome. This can be attributed to two reasons. Firstly, the explosive growth in the size of modern ships constrains the ability of a port to offer reasonable facilities to accommodate a ship in distress. Secondly, and most important, the fear of pollution or associated hazards due to the vast quantities of oil and other hazardous cargo

* The author would like to acknowledge Mr. José M. Rovira (Head of the maritime administration of Barcelona) who provided advice on the subject of places of refuge.

119 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 119–143. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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carried in a single hull represent a big risk for ports. As a consequence, there have been several incidents where shelter has been denied to ships in distress by national or local (e.g., ports) authorities. This reluctance to accept the entry of a damaged ship into their territorial waters or port areas is due not only to the aforementioned fear of pollution (i.e., sensitive areas, coastal and port environment), but also due to concern for the safety of local inhabitants, the economic consequences for coastal tourist resorts, and the severe disruption of port operations and subsequent loss of business. On the other hand, the risk of leaving the ship at sea is that this may lead to greater economic and environmental damages than bringing it to a place of refuge.1 The IMO Guidelines on Places of Refuge for Ships in Need of Assistance (IMO Guidelines)2 and EU Directive 2002/59/EC Establishing a Community Vessel Trafﬁc Monitoring and Information System3 acknowledge this risk and establish that places of refuge may be the best solution in the case of a ship in distress. However, a potential confrontation between the customary right of refuge and the coastal right of self-defence makes the decision to grant refuge complex. From the point of view of a port, the acceptance of a ship in distress into the port is not straightforward; many interests, such as environmental, economic and safety concerns, are involved in reaching a decision. Some important questions for the port to consider in such situation include: – Do commercial ports have to take in any ship in distress, even if this will pose a risk to the port, its population or installations, or if its commercial activities are hampered? – Who decides if a port has to accept a ship? – What are the costs incurred by a port? – Is there any compensation to a port accepting a ship in distress? – What is the civil liability of a port authority when deciding whether or not to accept a ship in distress? – What are the consequences for a port after accepting a ship in distress? – Would a new International Convention on Places of Refuge establish rights and duties for ports? Will it establish compensation and liability regimes for them?

1

For example, it can be leaking for a very long time without control and thus cause long-term damage to the environment. 2 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/Res.949, 5 March 2004 (hereafter IMO Guidelines). 3 Directive 2002/59/EC establishing a Community vessel trafﬁc monitoring and information system and repealing Council Directive 93/75/EEC, European Parliament and the Council of the European Union, Ofﬁcial Journal, L208, 5 August 2002, Article 20 (hereafter EU Directive).

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This chapter will address these questions from the point of view of the port. It will also examine general considerations about how the port environmental management system should reﬂect the fact that a port sometimes becomes a place of refuge.

PLACES OF REFUGE ‘Place of Refuge’ Concept Recently, a broader term has been adopted to designate those areas that could be used as a shelter by ships in distress instead of the well-known ‘port of refuge’. The latter has been used incorrectly by those not involved in shipping because they assume that a ship in an emergency situation wants to enter a main port, perhaps putting the port at risk, when the vessel really only seeks a place of shelter, usually an isolated place protected from weather. For this reason, the broader term ‘place of refuge’ better covers the concept of ‘shelter waters’ than the more speciﬁc ‘port of refuge’. With this wider term, the range of possibilities is much broader; places of refuge can vary from a place as simple as a quiet anchorage to a port capable of supplying all the services required by a ship in distress. The Maritime Safety Committee of the International Maritime Organization (IMO) adopted the term ‘places of refuge’ after considerable discussion about its suitability. 4 The Committee realised that although the term ‘ports of refuge’ had been widely used in shipping practice, it did not appear in any of the relevant international maritime conventions, e.g., the United Nations Convention on the Law of the Sea,5 International Convention for the Safety of Life at Sea,6 International Convention on Salvage,7 and the International Convention on Oil Pollution Preparedness, Response and Co-operation.8 In these conventions, the 4

International Maritime Organization (IMO), “Places of Refuge – Addressing the Problem of Providing Places of Refuge to Vessels in Distress”, <www.imo.org/safety/ mainframe.asp?topic_id=746>, 16 June 2005. 5 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN/Doc. A/CONF.62/122, 7 October 1982, Arts. 18(2) and 39(1)(c). 6 International Convention for the Safety of Life at Sea, 1974, London, 1 November 1974, 1184 U.N.T.S. 2, as amended, respectively Chap. V, Reg. 33 and Chap. V, Reg. 7(1). 7 International Convention on Salvage, 1989, London, 28 April 1989, U.K.T.S. 1996, No. 93. 8 International Convention on Oil Pollution Preparedness, Response and Co-operation, London, 30 November 1990, IMO Doc. OPPR/CONF/25, 30 I.L.M. 735 (May 1991) (hereafter OPRC 1990).

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word ‘port’ would be too narrow and restrictive vis-à-vis the envisaged scope of the geographical area that might, in the case of an emergency, be able to provide facilities and services (including putting in place contingency arrangements) to ships in distress, in particular laden tankers. Hence, the Committee decided to use the term ‘places of refuge’ (May 2001)9 and advised the IMO Marine Environmental Protection Committee and Legal Committee accordingly.10 Following this advice, the IMO Guidelines deﬁne ‘place of refuge’ as ‘a place where a ship in need of assistance can take action to enable it to stabilize its condition and reduce the hazards to navigation and to protect human life and environment’.11 Article 20 of European Union (EU) Directive 2002/59/EC uses the same terminology.12 The Directive deﬁnes ‘place of refuge’ as ‘a port, the part of a port or another protective berth or anchorage or any other sheltered area identiﬁed by a Member State for accommodating ships in distress’.13 According to these deﬁnitions, a place of refuge can be a port or any other sheltered water. The most important consideration is that the place can offer assistance to a ship in distress under the best possible conditions (e.g., protection from weather, availability of equipment and personnel).

The Need for ‘Places of Refuge’ In most cases, experience has shown that when a ship is in a distress situation, the best option is to bring the ship to safe waters, protected from the wind, and where the required assistance can be provided easily and effectively. For example, the ‘Erika’ (1999), a tanker carrying 30,000 tonnes of oil, was refused refuge by a French harbour master and subsequently broke in two and sank in heavy seas in the Bay of Biscay off the coast of France. One year later, the tanker ‘Castor’, with a load of 8.7 million gallons of unleaded gasoline, sustained heavy weather damage approximately 55 miles off the coast of Cartagena, Spain. Despite the risk of marine pollution and loss of life if deepsea transhipment were attempted, none of the affected coastal states offered the ship or the salvors a protected area closer to shore. The ‘Castor’ was unable to ﬁnd a sheltered place to effect cargo transfer and repairs for some 35 days. Finally, the vessel was towed to the coast of Tunisia where the cargo was safely unloaded. The ‘Prestige’, a 26-year-old single-hull tanker, sprang a leak off the

9 10 11 12 13

IMO, supra note 4. Ibid. IMO Guidelines, supra note 2, s. 1.19. EU Directive, supra note 3, Art. 20. Ibid., Art 3(m).

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coast of Galicia, Spain, on 13 November 2002. The Spanish government again refused to offer the vessel or the salvors a sheltered location. The vessel was ordered to be held more than 60 miles offshore. Six days later the vessel sank, having been refused a port of refuge.14 In these cases, the granting of access to a place of refuge would have assisted these ships as well as the coastal environment. EU Directive 2002/59/EC acknowledges that ‘non-availability of a place of refuge may have serious consequences in the event of an accident at sea’ and incidents can be prevented or controlled by providing a place of refuge,15 but not necessarily a port. It also requires Member States to draw up plans to accommodate, in the waters under their jurisdiction, ships in distress.16 This means the designation, on the basis of objective criteria, of strategic places of refuge and the preparation of accommodation arrangements (e.g., adequate equipment) and emergency response procedures.17 The IMO Guidelines also recognise that when a ship has suffered an accident, the best way of preventing damage or pollution from its progressive deterioration would be to lighten its cargo and bunkers, and to repair the damage.18 Such operations are best carried out in a place of refuge.

Designation and Publicising of Places of Refuge Should places of refuge be designated in advance? The answer to this question is not as obvious as it might at ﬁrst seem. On the one hand, it seems a good idea to have a ‘network’ of places of refuge prepared to receive a ship in distress (e.g., with suitable equipment, trained personnel, etc., in place) as established in the EU Directive 2002/59.19 It would be much easier to accommodate a ship in a pre-designated place of refuge because it would be prepared to receive it. In order to establish this network, co-operation between coastal states with adjacent pollution control zones would be required since marine pollution from casualties, when it occurs, does not respect political boundaries. On the other hand, it is not always possible to bring the ship to the speciﬁc designated place because distance, the direction of the wind or other environmental factors may not allow it. Instead, it is better to be in a position to improvise and be able to use another place more conveniently located as a

14 O. Ozcayir, “Ports of Refuge”, 9 Journal of International Maritime Law, No. 5, 2003, 486. 15 EU Directive, supra note 3, preamble, para. 16. 16 Ibid., Art. 20. 17 Ibid., Art. 20. 18 IMO, supra note 2, s. 1.3. 19 EU Directive, supra note 3, Art. 20.

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refuge. Robin Middleton, the UK Secretary of State’s Representative Maritime Salvage and Intervention (SOSREP) at the time of writing, is of this view.20 He argues that any location can be regarded as a place of refuge; even highly environmentally sensitive areas could become a place of refuge in order to contain pollution. He believes that there can be no pre-conceived ranking of places and ports of refuge because of the transient and varied nature of each incident and the time parameters affecting the value of a location as a place of refuge.21 Christopher Murray argues that, in the short-term, adopting pre-designated places of refuge will have the effect of keeping substandard shipping in distress at sea longer and further erode the right of entry.22 Another controversial point is the publicising of pre-designated places of refuge. The EU Directive initially pointed in this direction, but the reaction of Member States has not been fully supportive. The Scandinavian countries tend to favour a published list, while the United Kingdom and Ireland are concerned that such publicity might attract the ‘maritime lepers’ of the world to their ports, and would also probably provoke hostile reactions from local community members in the places listed.23 Although, the United Kingdom considers that there can be no pre-conceived list or ranking of places of refuge, because each incident has its own unique, transient and varied nature, a partial inventory of places of refuge on the UK coast has been published. It provides a generic analysis of locations that could lend themselves to becoming a place of refuge for ships.24

The Port as a Place of Refuge There has been much discussion about the convenience of designating a port as a place of refuge. Although both the IMO Guidelines and EU Directive 20 R. Middleton, “The United Kingdom Response to Salvage and Marine Pollution”, in: European Workshop: Lessons Learnt after the Prestige, 13–14 November 2003, Catania, Italy, <www.spillcon.com/2004/papers/MIDDLETON.pdf>, 15 June 2005. 21 Ibid., at 13. 22 C. F. Murray, “Any Port in a Storm? The Right of Entry for Reasons of Force Majeure or Distress in the Wake of the Erika and the Castor”, <moritzlaw.osu.edu/ lawjournal/murray.htm>, 15 June 2005. 23 Richard Shaw, “Designation of Places of Refuge and Mechanism of Decision Making”, CMI Yearbook 2003 (Antwerp, Comité Maritime International, 2003), <www.comitemaritime.org/year/2003/pdﬁles/YBK03–20.pdf>, 15 June 2005. 24 The Secretary of State’s Representative, “The UK’s approach to assigning places of refuge”, <www.mcga.gov.uk/c4mca/mcga-environmental/mcga-dops_cp_environmental-counter-pollution/mcga-dops_cp_sosrep_role/internet-_dops-_counterpollutionplaces_of_refuge__/dops_-_sosrep_-_ports_and_anchorages_hq-newpage–1003083. htm>, 15 June 2005.

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2002/59 recognise that a place of refuge does not necessarily mean a port (see the deﬁnitions above), they are not excluded from such a function. The fact that a port is selected as a place of refuge may have more socio-economic implications than other sheltered waters. The mere presence of a ship in distress may mean an environmental threat and emergency situation in a port, and moreover, normal port activities may be affected by the presence of the ship. Indeed, a port may be putting itself at considerable risk by accepting a ship in distress, endangering not only the environment and the economy, but also the safety of the port and the local inhabitants. Moreover, not all ports are equipped to be places of refuge. If a port becomes a shelter for a ship in distress, it should provide facilities to accommodate the ship and any required repairs, an adequate emergency response system (e.g., ﬁre ﬁghting measures, minimisation of pollution), equipment and personnel for the transfer or tugging/towing of cargo (e.g., tugs, cranes), medical assistance, no size-restricted anchorages, etc. However, ports could be the places best prepared to receive a ship in need of assistance since they can provide better guarantees to minimise overall risks (i.e., by providing equipment, security, personnel, etc.). For example, a place of refuge could be helpful in order to provide shelter and to contain pollution, but if a ﬁre or explosion occurred, a port could be a much better location since it would have the necessary emergency equipment to minimise damage. Moreover, the break-up of the ship is less likely in a port, and the recovery of a spillage is easier than in other sheltered waters.25 The IMO Guidelines state: ‘Consideration must be given to the possibility of taking the affected ship to a port or terminal where the transfer or repair work could be done relatively easily’.26 From the point of view of the ports, automatic acceptance of a ship in distress is not so clear. According to the European Sea Ports Organization (ESPO): [A] ship in distress does not necessarily need to ﬁnd shelter in a port. What it needs is access to relatively sheltered waters so that whatever operations must be performed to make the ship, its crew and its cargoes safe, can be done with minimum risk to either the ship, the coastal State, the environment or indeed the salvors themselves. There is therefore no need for accommodation in a port. Pollution controls are indeed easier to carry out in such sheltered waters because, in case of accident, the environment, safety and economy of the port is not endangered and, the ship being close to the shore, pollution remains limited to a restricted area.27

25

S. Lewis, “Making Decisions for Ships in Distress – A Risk Based Perspective”, Paper presented to the Clean Seas Conference, London, 12 June 2001. 26 IMO Guidelines, supra note 2, s. 1.9. 27 European Sea Ports Organization (ESPO), “Accommodating Ships in Distress: the Ports Perspective”, <www.espo.be/policy/Final%20Comments%20Prestige%20December %202002.pdf>, 19 December 2002.

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Similarly, former IMO Secretary-General, William O’Neill, after the ‘Castor’ incident, stated: Ships in a situation such as that facing the Castor do not need or want to proceed to a port. What they do need is access to relatively sheltered waters so that whatever operations must be performed to make them and their cargoes safe, can be done with minimum risk to either the ship, the coastal state, the environment or indeed the salvors themselves.28

The International Chamber of Shipping also stated in a submission to the IMO Maritime Safety Committee that ‘although in some cases port facilities may be required, in many instances the immediate need is access to sheltered waters rather than entry into port’.29 Some alternatives to the use of the ports as a place of refuge have been explored. For example, Carsten-S. Wibel has suggested the use of an anchorage as a ‘place of refuge’.30 It could be used for ﬁre ﬁghting, cargo transfer, lightering, or damage control. The main advantage of this measure would be the distance from cities or other inhabited areas, giving better protection to the population. Today, very few anchorages are prepared for a vessel in distress, burning or leaking gas, especially when dangerous cargoes are involved. Up to now there has been little interest in the use of an anchorage as a ‘place of refuge’.31 Another option could be the establishment of special reception facilities as places of refuge for distressed ships. These facilities could take the form of large docks, including ﬂoating docks, where the distressed ships could be directed, thus conﬁning leakages and reducing the risk of pollution. They would be strategically located along the coast, enabling the entry of the ship to them within a reasonable time frame. This option would facilitate the decisionmaking process and the resolution of liability issues.32 In Spain, the construction of this kind of reception facilities has taken the form of a port in La Coruña (Galicia). This port of refuge, as it is called, is being built and will provide all the facilities and equipment necessary by a ship in distress. The main goal of this project is to avoid disasters such as the

28 The Baltic Exchange, “Place or Ports”, The Baltic Online, <www.thebaltic.com/ supplements/World%20Ports/place.htm> 7 July 2005. 29 Ibid. 30 C.-S. Wibel, “Places of Refuge: Solutions for a Burning Problem”, Paper presented at the International Conference and Exhibition, Ship/Port Interface – Environment and Safety, Rotterdam, the Netherlands, 22–24 October 2002, <www.euleandpartners.com>, 15 June 2005. 31 An anchorage can be found in many locations, but in this case it refers to locations outside of cities, offering a protected position, that can offer shelter to a vessel. 32 G. Timagenis, “Reception Facilities for Ships in Distress”, CMI Yearbook 2003 (Antwerp, Comité Maritime International, 2003), <www.comitemaritime.org/year/2003/ 2003_part02_c.htm>, 7 July 2005.

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‘Prestige’. This initiative could be a good option, but does have some drawbacks such as the high cost of construction and maintenance, the environmental impact of such a civil work in a natural space, and the suitability of its emplacement, e.g., if the ship is too damaged to reach that point. Is it worth having this port of refuge? How many ships does the port give refuge to in order to recover its investment? For the moment, it is not possible to answer these questions since it is a pilot project and it is necessary to wait and see if it is worthwhile to build this kind of constructions in order to provide ships with a place of refuge. In conclusion, experts such as Middleton agree that it is not important if the place of refuge is a port or not, the point is that in an extreme situation, any location should be regarded as a potential place of refuge.33

Features of a Place of Refuge Independent of the kind of place of refuge (i.e., port, anchorage, reception facility, etc.), certain criteria should be borne in mind when deciding the best place to accommodate a ship in distress, such as: – adequate water depth to safely accommodate damaged ships – shelter from the prevailing winds and swells to facilitate the prompt and controlled transfer of cargo to another ship or to land-based storage – near to coast and major shipping lines – sea bed suitability for potential grounding of a vessel – sufﬁcient space to manoeuvre the vessel – availability of technical resources (e.g., tugs, transfer facilities, oil pollution control equipment and facilities) in the vicinity to facilitate transfer operations – safe distance from urban areas and industrial sites – safe distance from ecologically sensitive areas – ease of access from land (i.e., connected to infrastructure such as roads, railway, etc.) – furnished with equipment for ﬁre ﬁghting, including ﬁre extinguisher supply and disposal – appropriate contingency plans to deal with any possible situation

THE PORT AUTHORITY’S PERSPECTIVE For many years, ports have provided shelter to ships when they needed it. However, the notable increase in the size of ships and the fear of environmental

33

Middleton, supra note 20, at 13.

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pollution have changed the ports’ attitudes and constrained their ability to offer reasonable facilities to accommodate a ship in distress while at the same time ensuring the continuity of the port’s routine. The decision of whether or not to accept a ship in a port comes from the interaction between the maritime administration, coastal and port authorities and the ship seeking refuge. Depending on the country, the role, responsibilities and powers of these authorities will differ, but practically there will frequently be some overlap between jurisdictions. Generally, the national government has the last word as to the entrance of a ship in distress, but the local authorities, such as port authorities, may also play a pivotal role in the decision.

Customary Law and Coastal State Rights When a port has been designated as a possible place of refuge for a ship in distress, the basic question is, does this ship have the right to enter this commercial and industrial area or does the port have the right to decide on its acceptance? According to customary law, for over 200 years, ships in distress have had the right to seek refuge in ports or safe waters under admiralty and maritime law.34 But this ancient practice may conﬂict with the modern attitude of coastal states that appeal to their right of self-defence. From their point of view, the accommodation of such ships in a place of refuge near the coast may endanger the coastal state, both economically (especially if the place of refuge is a port) and environmentally. Also, local authorities and coastal populations may object strongly to such operations. All this leads to what can be termed a ‘not in my front pond’ syndrome, analogous to the ‘not in my backyard’ syndrome (NIMBY), with states all too easily driving ships in distress away, without having adequate regard for the interests of neighbouring states and coasts. From the point of view of salvors, this position could also have negative consequences: – the likelihood of the ship being lost and/or seas being polluted is dramatically increased – lives, if not of the ship’s crew then of the salvage crew, may be jeopardised – salvors are put in immediate ﬁnancial hardship, while those with ship and cargo interests, as well as liability insurers, may face unnecessary costs – for the aforementioned consequences, ofﬁcials and states may arguably be held liable for damage in the future35 34

A. Chircop, “Ships in Distress, Environmental Threats to Coastal States, and Places of Refuge: New Directions for an Ancient Regime?”, 33(2) Ocean Development and International Law, 2002, 207. 35 G. Tsavliris, “Safe Havens from a Salvor’s Point of View”, Paper presented to the Clean Seas Conference, London, 12 June 2001.

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This tension between the customary law and the coastal right of self-defence has motivated IMO to provide governments, ship masters, shipping companies, and salvors with a common framework (IMO Guidelines on Places of Refuge) enabling them to respond effectively to the situation of ships in need of assistance.36

The Refuge Decision-making Process For the moment, there does not seem to be a straightforward system to assess a ship’s request for a place of refuge; there is neither an absolute right of access, nor an absolute right of refusal. A balance between the interest, rights, and/or risks is needed. Maritime authorities (and, where necessary, port authorities) should make an objective analysis of the advantages and disadvantages of accepting a ship requesting refuge, taking into account a long list of factors. There is no obligation for the coastal state to grant access to a ship in distress, but it should weigh all the factors and risks in a balanced manner and give shelter whenever reasonably possible. The coastal state needs to reconcile the humanitarian dimension of the right of ships to seek refuge with the right of self-protection of the coastal state/port. A balance between the safety of the ship and its crew and the safety of the port’s own environment, people and economy is required. This approach is not entirely free of risk because the balancing done by the authorities of the coastal state (maritime/port authorities) is not always as objective as it should be. It would be better if the ﬁnal decision was taken by the technical experts with all the relevant information and not by politicians. For these reasons, it would be useful to consider appointing an independent authority without political functions to deal with refuge requests. This entity should represent the public interest in such a situation, and should be sufﬁciently trained and informed on all relevant issues to be able to take an objective, proper and quick decision. Moreover this entity should have sufﬁcient authority and have the support and trust of ports to which it might direct a ship in distress, after taking advice from all relevant players. Some countries have already adopted this approach. In the United Kingdom a single person, the SOSREP, has the overriding competence to make the ﬁnal decision.37 In France, there is a body with a similar function, the Préfet Maritime.38 Norway has the Norwegian Coastal Directorate’s Department for

36

IMO Guidelines, supra note 2. R. Middleton, “The UK Experience with Places of Refuge”, Paper presented to the International Workshop on Places of Refuge, University of Antwerp, 11 December 2003, <www.espo.be/news/proceedings_11–12–2003.asp>, 15 June 2005. 38 R. Shaw, “The Debate Moves On”, 10 The Journal of International Maritime Law, No. 2 (April-May), 2004, 174. 37

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Emergency Response, which is responsible for the decision on requests for refuge.39 In the United States, the Coast Guard has designated three area commanders with similar powers respectively covering the Atlantic, Gulf and Paciﬁc coasts.40 The problem for such a large federal state is that it is not possible for one person to cover all coasts. However, this could be resolved with the appointment of a small number of individuals who can make informed decisions to protect the public interest on the basis of an objective assessment of all relevant factors and the relative risks involved. The decision to grant refuge should be based on a risk assessment, and it should be objective, transparent and veriﬁable (i.e., taking into account facts, available information, etc.). Since every incident is unique, the decision should be taken on a case-by-case basis. Some risk assessment procedures have been adopted or proposed. For example, the Spanish Government has created a methodology for risk assessment in coastal zones in Spain.41 Another methodology has been proposed by Steve Lewis42 that stresses that it is necessary to assess risk in advance by analysing several factors (e.g., operational constraints, potential environmental impact, weather conditions) (See also Chapter 5 in this volume). To carry out a proper risk assessment, the order of the criteria to be considered should be: – safety and protection of the persons on board – safety and health of human life in the vicinity of the ship in distress and/or along the coast, fairway, river or port – protection of the environment, natural resources of the sea and the coastal region – protection of sensitive installations and economic and socio-economic infrastructure and amenity facilities within the coastal region, river or port – economic impact on the port and the region – the safety of the ship and its cargo43

39

W. Van der Velde, “The Position of Coastal States and Casualty Ships in International Law”, CMI Yearbook 2003 (Antwerp, Comité Maritime International, 2003), <www.comitemaritime.org/year/2003/2003_part02_c.htm>, 15 June 2005. 40 Shaw, supra note 38. 41 G. Gómez Barquín, “Methodology for Risk Assessment in Coastal Zones in Spain”, Paper presented to the International Workshop on Places of Refuge, University of Antwerp, 11 December 2003, <www.espo.be/news/proceedings_11–12–2003.asp>, 15 June 2005. 42 Lewis, supra note 25. 43 H.-J. Roos, “Provisions of Safe Haven – The Australian/UK and German Approach”, Paper presented at the International Conference and Exhibition, Ship/Port Interface – Environment and Safety, Rotterdam, the Netherlands, 22–24 October 2002, <www.euleandpartners.com>, 17 May 2005.

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The Spanish Example As noted above, the decision-making process is complex, especially when different authorities are involved. This is true in the case of Spain where the national government, the maritime administration and port authorities all have a role in deciding the acceptance or refusal of a ship in distress. The relation among these authorities is presented in Figure 1.

National Government

Ministry of Public Works

General Secretariat of Transport

Ports of the State (Puertos del Estado)

General Direction of the Merchant Navy

Maritime Administration

• Control of the port area space and waters • Coordination of the activities carried out in the ports

• Control of the entrace or exit of ships in Spanish waters • Control of maritime trafﬁc safety and maritime pollution

Figure 1: Hierarchy of maritime authorities in Spain

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As can be seen, the national government appoints two main bodies, one for the control of the public ports (in Spain, the main ports are under public control) and the other for the control of the maritime jurisdiction of Spain (maritime administration). The maritime administration is responsible for taking the ﬁnal decision concerning ships in distress since it is responsible for Spanish waters. However, the port authority is responsible for the port’s waters. As a result, there could be some overlap in their jurisdictions. The port authorities believe that it is very important to consider their opinion in designating refuge because they best know the availability of equipment in a port, the areas where a ship in distress could be repaired and, ultimately, they have to make available all the facilities to help the ship. If the maritime administration and the port authority do not arrive at a joint decision, the common and higher authority, the state, will have to step in. This process is not easy because not only are the port’s interests involved, but also political, social and environmental pressure can inﬂuence the ﬁnal decision. In order to resolve these problems, the Spanish government adopted Royal Decree 210/2004 on the Monitoring and Information of the Maritime Trafﬁc (6 February 2004)44 according to EU Directive 2002/59/EC and the IMO Guidelines. The decree establishes the responsibility of the Spanish Merchant Navy for drawing up the procedures to determine the objective criteria and rules according to which the maritime administration has to act when a ship in distress requests refuge. The decree establishes the following three points: 1. There is no obligation to provide refuge to a ship in distress. 2. The decision on access to a place of refuge will be taken by the General Director of the Spanish Merchant Navy on a case-by-case basis. 3. It is necessary to carry out an assessment of the consequences of leaving the ship at sea or accepting it in a place of refuge. According to the Decree, the General Director of the Spanish Merchant Navy (or the maritime administration if the Merchant Navy delegates it), in accordance with a set of technical and objective criteria, will decide the acceptance or refusal of a ship in distress. According to the Spanish Merchant Navy ofﬁcials, these procedures are currently being developed and it is expected that they will be ﬁnished by February 2006. Concerning the future role of the state ports on this matter, the Merchant Navy also indicates that it has taken their comments into account and that the ﬁnal procedures will leave no doubt about the functions and responsibilities of each body in the refuge decision-making process.45

44 Royal Decree 210/2004 on the monitoring and information of the maritime trafﬁc, BOE (Boletin Oﬁcial del Estado) no 39, 14 February 2004, 6868. 45 Personal communication, Mr. José M. Rovira, Head of the Maritime Administration, Barcelona, January 2005.

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Communication During the decision-making process, communication between all the actors is essential in order to carry out a proper assessment of the situation. Each of the bodies involved will know how to deal with some aspects of the situation better than others (e.g., search and rescue authorities will be most aware of the crew’s condition and safety of the vessel, and the harbour master will be familiar with the facilities and assistance a port can offer a ship). However, unless there is a SOSREP equivalent in place, no one entity will have access to all the pieces of information needed to take the decision to grant refuge in a port. For this reason the co-ordination of all relevant authorities is required and good communication is necessary. According to the IMO Guidelines: The maritime authorities, port authorities, authorities responsible for shoreside safety and generally all governmental authorities concerned should ensure that an appropriate system for information-sharing exists and should establish communication and alert procedures (identiﬁcation of contact persons, telephone numbers, etc.), as appropriate. The aforementioned authorities should plan the modalities for a joint assessment of the situation.46

The aforementioned need for appointing a central entity responsible for receiving notiﬁcation and all the information when a ship in distress requests entrance to a port is also recognized by the IMO Guidelines, which recommend the establishment of a maritime assistance service (MAS): The Coastal State should establish a Maritime Assistance Service (MAS) which function is being the point of contact between the shipmaster and the authorities of the coastal State in the event of an incident and to receive the various reports, consultations and notiﬁcations about the accident.47

The IMO Guidelines were accompanied by a sister IMO Assembly resolution recommending the establishment of MAS services.48 In this regard, the International Salvage Union (ISU) has stated that every EU state should appoint one person with the authority to decide whether to refuse or grant assistance to ships in need (e.g., SOSREP in UK).49 This person must receive all the information concerning the case in order to arrive at a good decision. Communication is key to carrying out a proper assessment of the situation when a ship requests refuge. However, communication between all the involved actors is not always sufﬁcient or efﬁcient. One difﬁculty in

46

IMO Guidelines, supra note 2, s. 3.7. Ibid., s. 2.4. 48 Maritime Assistance Services, IMO Assembly Resolution A.950, Adopted on 5 December 2003, IMO Doc. A 23/Res.950, 26 February 2004. 49 Roos, supra note 43. 47

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accommodating ships in distress relates to the fact that there have been cases where the master/owner of the ship did not forward accurate information (i.e., about the damage or the cargo) to the competent authorities. Such a situation makes salvage operations even more difﬁcult.50 It may also pose a problem for ports that receive ships without having proper knowledge of the assistance that they require, putting the whole port community at risk due to the lack of information concerning the state of the ship.

Port Compensation and Liability One of the most controversial questions surrounding places of refuge is whether a port should receive economic compensation for accepting a ship in distress into their waters. On this subject, the IMO Guidelines state: [I]f the place of refuge is a port, a security in favour of the port will be required to guarantee payment of all expenses which may be incurred in connection with its operations, such as: measures to safeguard the operation, port dues, pilotage, towage, mooring operations, miscellaneous expenses, etc.51

The EU Directive 2002/59 goes a bit further and asserts: Ports accommodating a ship in distress should be able to rely on prompt compensation for any costs and damage involved in this operation. The Commission should therefore examine the possibilities for introducing an adequate system of compensation for ports in the Community accommodating a ship in distress and the feasibility of requiring a ship coming to a Community port to be adequately insured.52

The Spanish Royal Decree 210/2004 also requires ﬁnancial security in order to indemnify any damage caused by the ship and to cover the costs of granting refuge to the ship (towing, pollution of the coasts, etc.).53 According to Eric van Hooydonk, if ships in distress are to gain easier access to places of refuge, port authorities and all the other authorities concerned must be able to count on receiving speciﬁc, reasonable and justiﬁable compensation.54 But, this subject is still under discussion by the European

50

W. Winkelmans, “Panel decision with representatives of European port authorities”, Paper presented to the International Workshop on Places of Refuge, University of Antwerp, 11 December 2003, <www.espo.be/news/proceedings_11–12–2003.asp>, 15 June 2005. 51 IMO Guidelines, supra note 2, s. 3.14. 52 EU Directive, supra note 3, para. 16. 53 Royal Decree, supra note 44. 54 E. Van Hooydonk, “Accommodating a Ship in Distress: Rights and Responsibilities of Port Authorities”, Paper presented to the International workshop on Places of Refuge,

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Commission. If automatic compensation is feasible and economically reasonable, it could be an incentive for ports when considering the entrance of a ship in their waters. This would encourage ports to make a more positive assessment of the request of ships in distress and, as a consequence, the risk of accidents and environmental catastrophes could be reduced. According to the results of the Comité Maritime International (CMI) questionnaire in 2002 on ports of refuge,55 most respondents indicated that compensation is expected to come from the ship’s protection and indemnity (P&I) insurance and the International Oil Pollution Compensation Fund (IOPCF). Another way of encouraging ports to accommodate ships in distress, according to van Hooydonk,56 comes from the idea of the port as a salvor. The reality is that the port is very important in most of salvage operations. The salvors need to bring the ship in distress to a place of safety, frequently a port. From this point of view, it appears justiﬁable to grant a port that has admitted a ship in distress (voluntarily or under constraint) a salvage reward, or at least part of the normal salvage fee awarded to the salvors. However, this reward should not be seen as a commercial venture for ports. The objective is to provide a reasonable incentive so that, should the case arise, the port will be more prepared to lend its co-operation to a vessel in distress. The granting of a salvage reward to the port is, indeed, yet another reason for leaving the ﬁnal decision on the admission of ships to a neutral authority at a higher level to the port, which would have no interest in receiving a salvage reward. This would avoid any conﬂict of interest on the part of the decision-maker. Compulsory insurance for ships entering a port, which is being examined by the EU Commission, is another element that could help port authorities make a more positive assessment of refuge situations since they could expect to recover their costs.57 The liability of the coastal state, port authorities, coast guards, salvors and shipowners when accommodating a ship in distress is unclear. According to the results of the 2002 CMI questionnaire (circulated to national maritime law associations), most respondents agreed that a government could not be held responsible for damage resulting from its decision to give/refuse access to a ship, unless it is established that it has acted negligently or that there is a direct

University of Antwerp, 11 December 2003, <www.espo.be/news/proceedings_11–12– 2003.asp>, 15 June 2005. 55 Comité Maritime International, “Introduction (CMI questionnaire responses)”, CMI Yearbook 2003 (Antwerp, Comité Maritime International, 2003), <www.comitemaritime.org/year/2003/2003_part02_c.htm>, 15 June 2005. 56 Hooydonk, supra note 54. 57 “Approach to Regulation in the Oil Tanker Sector”, Athens Tanker Event, 10–13 April 2005, <www.intertanko.com/pubupload/Urrutia.ppt.>, 16 June 2005.

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link between the decision and the ensuing damage.58 Moreover, shipowners would be responsible, unless it is proved that third parties contributed to the damage. According to van Hooydonk, if access to ports for ships in distress has to be encouraged, it would most certainly be counter-productive to hold port authorities or their ofﬁcials such as harbour masters civilly or criminally liable for the pollution that may arise when the ship is admitted.59 When the port is required to admit a ship by a higher authority this would be even more pointless. On the other hand, the European Parliament has proposed the introduction of criminal sanctions for port authorities acting negligently when a ship in distress is demanding entrance to their facilities.60 The port authorities believe the measure is disproportionate to the port’s behaviour. Compensation and liability are fundamental correlatives to the designation of places of refuge and therefore an adequate legal framework would contribute to a better approach to assessing requests for refuge. EU Directive 2002/59 requests the Commission to investigate these issues further and to suggest proposals. The Commission will give effect to this request in the near future.61

Potential Consequences for the Port after Accepting a Ship in Distress Once the port has agreed to accommodate a ship in distress in its internal waters, there may be some potential consequences on the following aspects: • Environment: The presence of a ship in distress in a port may involve a high risk of pollution due to the potential release of oil, chemicals or other hazardous substances (as a result of leakages, break-up of the ship, etc.). Moreover, environmentally sensitive areas nearby the port may be affected by any pollution coming from a damaged ship. • Safety: Not only may the safety of the port be affected by the presence of a ship in distress, but the safety of the local inhabitants may be jeopardised. The risk of explosion, ﬁre, or gas cloud releases may affect any population living near the port as well as the port’s employees. The presence of a ship in distress loaded with hazardous substances inside the port could generate a chain reaction putting at risk the whole port community and its neighbours.

58

CMI, supra note 55. Hooydonk, supra note 54. 60 European Economic and Social Committee, “Maritime Safety in Europe”, EESC Pamphlet Series, 67, <64.233.161.104/search?q=cache:fV9QancbNh0J:www.esc.eu.int/ publications/pdf/pamphlets/EESC-C–2003–007–EN.pdf+European+Parliament++ distress+criminal+sanctions+for+port+authorities+&hl=en>, 18 June 2005. 61 EU Directive, supra note 3. 59

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• Economy: The accommodation of a ship in distress could impose ﬁnancial costs on the port such as: ° Equipment, facilities and personnel required for the stabilisation (e.g., unloading the cargo) and repair of the ship; ° Clean-up costs in case of spillages (e.g., oil, chemicals); ° Loss of commercial activity due to the possible disruption of the normal activities because of the presence of a ship in distress in the port area or the risk of break-up of the ship in the access channel of the port that could paralyse the port’s activities; ° Damage to the structures/property of the port; ° Whenever a vessel suffers a casualty, claims are unavoidable. When a vessel suffers a casualty in a port the potential affected parties multiply, e.g., victims and interest groups could press charges against the port in cases of injury to persons, pollution of the environment, loss of income by third parties, or physical damage to third party properties; ° Ships may be abandoned after receiving refuge, e.g., when the vessel has suffered serious damage as to become a constructive total loss. Abandonment is a potential problem for a port in terms of the cost of disposal, lost berth income and the vessel’s presence in the port’s waters could increase trafﬁc congestion; ° Tourist resorts may be affected by the presence of the ship in the port area and the port could lose money if it affects the normal running of its activities. • Social: The presence of a ship in distress in a port could damage the image of the port, depending in part on the media coverage, which could magnify the event that has occurred. It is necessary to bear in mind that these consequences are not always consequential to accepting a ship in distress. It depends on how the process of granting refuge develops. It is true, however, that if the port providing the ‘place of refuge’ does not have to bear any costs, the reluctance of ports to accept a damaged ship would be reduced considerably.62

Need for an International Convention on Places of Refuge Maritime safety is an issue that is of major concern for the port sector. Action in this area should be taken at both the national and international levels. In fact, for several years the access of a ship to a port has depended either on bilateral or multilateral treaties, or been subject to customary courtesies. The discussion

62

Roos, supra note 43.

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about the need to put in place an international regime for ships in distress has been partially treated in some legal instruments and guidelines, but without an effort at speciﬁcally developing a multilateral regime for ships in distress. The Convention on the International Regime of Maritime Ports, 1923,63 Bonn Agreement, 1980,64 International Convention on Salvage, 1989,65 Convention on Facilitation of International Maritime Trafﬁc, 1965,66 EU Directive67 and the IMO Guidelines all address this issue at some level.68 According to van Hooydonk, the celebration of an international convention on places of refuge could be a win-win situation for all concerned. It would be useful to set out principles regarding the right of access, decision-making methods, civil and criminal liability of authorities, the compensation regime for losses accruing to ports, and terms concerning the allocation of salvage rewards and requests for ﬁnancial securities. Such a convention could recognise the right of entry as a general principle and only allow expressly and exhaustively speciﬁed restrictions. He also considers mere guidelines and contingency plans to be inadequate as they lack mandatory enforcement.69 One could envisage that port authorities would also beneﬁt from a convention that clearly established the rights and duties of shipowners and their insurers, salvors, coastal states and port authorities. Their responsibilities would be more clearly demarcated. More legal certainty would also reduce the risks for ports. Ultimately, the convention would provide ports with a guaranteed right to compensation, as well as limitation of their liability. Of course not all authors share this opinion. The CMI informed the IMO Legal Committee (November 2004) about the lack of an international convention establishing the rights and obligations of a coastal state when it was faced with a request to provide a place of refuge.70 The committee expressed the need of further study of this subject, but the general opinion of IMO was that this subject had already been addressed in the existing legal instruments, what

63

Convention on the International Regime of Maritime Ports, Geneva, 9 December 1923, 119 BFSP 568–581 (1924). 64 Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances, 1983 (entered into force 1 September 1989) (Bonn Agreement), <www.bonnagreement.org/eng/html/welcome.html.>, 11 June 2005. 65 International Convention on Salvage, 1989, London, 28 April 1989, U.K.T.S. 1996, No. 93. 66 Convention on Facilitation of International Maritime Trafﬁc, 1965, as amended, London, 9 April 1965, 591 U.N.T.S. 265. 67 EU Directive, supra note 3. 68 IMO Guidelines, supra note 2. 69 Hooydonk, supra note 54. 70 IMO Legal Committee (LEG), 89th session, 25–29 October 2004, <www.imo.org/ home.asp>, 16 June 2005.

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was needed, however, was better subscription and implementation of these instruments.71 There are others who think there is no need for such a convention since no state will sign a document compromising itself by accepting a ship in distress, irrespective of the situation. In this sense, Patrick Griggs (former President of CMI) believes that there is no point in creating a new convention that imposes obligations on states to grant access to places of refuge if the instrument is never going to be adopted by enough states for it to come into force internationally.72

ENVIRONMENTAL MANAGEMENT CONSIDERATIONS When a port is selected as a place of refuge, the vessel requiring assistance may pose an environmental threat and emergency to the port. Moreover, normal port activities may be affected by the presence of the ship. As a result, it is necessary to consider the environmental implications of such an entrance and how they may be addressed in the environmental management system of a port. The role of the environmental manager of the port is very important. He/she should take steps to minimise the environmental impact while the ship receives assistance. In order to do so, a proper and effective environmental management system (including an adequate emergency planning, environmental policy, effective training of the personnel, etc.) is required. Such a system must also contemplate the situation of the port as a shelter when an emergency situation occurs.

Environmental Initiatives in Ports From the point of view of the environment, sea ports are very complex systems. In fact, the very existence of the port, as well as any expansion of its installations, implies a loss of habitat. Furthermore, ports have environmental impacts: waste water, emissions of gas or particles into the atmosphere, noise, soil contamination, dredging, waste production, accidental releases into water or air, etc.73 One of the main challenges facing the ESPO is achieving sustainable

71 IMO, “Report of the Legal Committee on the Work of the Eighty-Ninth Session”, IMO Doc. LEG 89/16, 4 November 2004, 27–28. 72 P. Griggs, “Places of Refuge: the International Context”, Paper presented to the International Workshop on Places of Refuge, University of Antwerp, 11 December 2003, <www.espo.be/news/proceedings_11–12–2003.asp>, 15 June 2005. 73 C. Trozzi, R. Vaccaro, “Environmental Impact of Port Activities”, in: C. A. Brebbia and J. Olivella, eds., Maritime Engineering and Ports II (Southampton, WIT Press, 2000), 151.

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development in sea ports. ESPO has developed several initiatives over the last years to improve environmental performance in ports. In 1994, ESPO published the Environmental Code of Practice,74 which aimed to express the ports’ collective commitment to environmental improvement. In 2001, the ESPO Environmental Review was published as a revision and follow-up to the Code of Practice.75 Finally, in 2003, ESPO published a new Code of Practice, which recommends more speciﬁc environmental practices and goes further in order to improve the environmental performance in ports.76 ESPO has also collaborated with universities and ports to improve environmental performance of ports. In 1997, ESPO initiated a collaborative research project to improve the exchange of information on port-related environmental issues.77 ECO-information lasted for three years, establishing the basis for a new project called ECOPORTS (2002–2005).78 ECOPORTS’ main goal is to harmonise the environmental management approach of ports in Europe by promoting improvements in environmental performance, communication, assessment and management in ports, and moving them towards more sustainable development. In a similar effort to ESPO, in the United States, the American Association of Port Authorities (AAPA) completed an Environmental Management Handbook designed to assist ports in effectively managing their environmental issues.79 Recently, the places of refuge issue has been on the agenda of various environment protection organisations. ESPO has prepared reports on the European ports’ perspective about places of refuge and has sent them to CMI and IMO to be considered in their policies. All these efforts are designed to increase the authorities’ involvement in place of refuge situations in their territories and to

74 European Sea Ports Organisation (ESPO), “Environmental Code of Practice” (Brussels, ESPO, 2004), <www.espo.be/publications/ENVIRONMENTAL_Code_of_ p.pdf>, 15 June 2005. 75 European Sea Ports Organisation (ESPO), “ESPO Environmental Review & Follow-up to the ESPO Code of Practice” (Brussels, ESPO, 2001), <www.espo.be/publications/environmentalreview2000.pdf>, 16 June 2005. 76 European Sea Ports Organisation (ESPO), ECO-information, “ECO-information in European Ports. Final Report” (Brussels, ESPO, 1999). 77 ECO-Ports, “About the Project”, <www.ecoports.com/ports/about/content.asp? id=5>, 16 June 2005. 78 European Sea Ports Organisation (ESPO), “Environmental Policy Code”, (ESPO, Brussels, 2003), <www.espo.be/publications/English%20ENVIRONMENTAL%20 POLICY%20CODE.pdf>, 17 June 2005. 79 American Association of Port Authorities (AAPA), Environmental Management Handbook (Alexandria, VA, AAPA, 1998), <www.aapa-ports.org/govrelations/env_ mgmt_hb.htm>, 16 June 2005.

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clarify the role and responsibilities of all parties involved, including the issues of environmental liability and compensation.80

Port Environmental Management Systems Environmental issues are of strategic relevance for ports, and therefore the environmental impacts produced by their normal activities should be minimised. The ﬁrst step towards this goal is to manage environmental issues. Today, the most common standards used to implement an environmental management system are ISO 1400181 and the eco-management and audit scheme (EMAS).82 According to these standards, an environmental management system (EMS) can be deﬁned as ‘the part of the overall management system that includes organisational structure, planning activities, responsibilities, practices, procedures, processes and resources for developing, implementing, achieving, reviewing and maintaining the environmental policy’.83 Ports can derive important beneﬁts from good environmental management. Improved community relations and cost savings are two immediate examples. For these reasons, the implementation of an EMS in ports has become a differential factor that can lead to a competitive advantage. The environmental considerations deriving from the presence of a ship in distress in a port should be addressed in its EMS. Some steps should be taken concerning the following aspects of an EMS: – Environmental Policy: One of the main commandments of ISO 14001 is the prevention of pollution. The environmental policy of the port should demonstrate commitment to this principle. Accordingly, the port should take the necessary steps to minimise the environmental impact while a ship in distress receives assistance in the port, reducing as much as possible the

80 H. Ringbom, “You are Welcome, But . . . . Places of Refuge and Environmental Liability and Compensation, with Particular Reference to the EU”, CMI Yearbook 2004 (Antwerp, Comité Maritime International, 2004), 208–233. 81 International Organization for Standardization (ISO), ISO 14001, “Environmental Management Systems – Speciﬁcation with Guidance for Use”, CAN/CSA-ISO 14001– 96 (R2001) (Brussels, CEN, 1996). 82 European Parliament and the Council of the European Union, Regulation (EC) No 761/2001 of the European Parliament and of the Council of 19 March 2001 Allowing Voluntary Participation by Organisations in a Community Eco-management and Audit Scheme (EMAS), Ofﬁcial Journal, L114:44, 24 April 2001, 1, <europa.eu.int/eurlex/pri/en/oj/dat/2001/l_114/l_11420010424en00010029.pdf>, 17 June 2005. 83 ISO, supra note 81.

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pollution to the area. To attain this goal, the remainder of an EMS should address this situation. Management Organisation and Personnel: It is very important to know who is responsible for what when a ship in distress is accommodated in a port. It is necessary to determine the type and quantity of specialist personnel and equipment required in the port to cope with arrival, discharge of the cargo, if necessary, and the repair of the vessel. Environmental responsibilities of key personnel should be identiﬁed, and the organisational structure should be reviewed according to the new measures adopted for such situations. Communication: A set of procedures should be established to ensure that, in cases of refuge, internal and external communication is carried out properly. Communication of environmental information internally to key personnel is absolutely required. Communication from the port authority with all the other actors involved, especially the maritime administration and the national government, is also critical. Training of Personnel: It is absolutely necessary to train effectively the employees of the port about how they should act (e.g., unloading the cargo, cleaning up, communicating information, activating contingency plans) in cases of accommodating a ship in distress in their waters. Operational Management: Standard operating procedures and working instructions should be drawn up for port employees on their actions in such situations (e.g., procedures for port entry, berthing, cargo discharge, etc.). Contingency Plans: One of the main sections in an EMS is the contingency plan, which includes the actions to be taken in emergency situations such as explosion, ﬁre, ﬂoods and spillages. This contingency plan should be amended to give consideration to the situation of granting refuge to a ship in distress. The EMS should also be parallel to the national contingency plan relating to the threat of marine pollution and ships in distress. The contingency plan should include provisions for the availability of human resources, equipment and technical expertise. Moreover, it should have regard to the particular conditions pertaining at their port, including access to safe moorings, berths and jetties, tugs, counter-pollution equipment, off-loading and repair facilities. It also should take into account some environmental considerations such as the risks involved (explosion, ﬁre, release of gas clouds, oil or chemical pollution, etc.), local tides and currents, and other marine activities such as ﬁshing. Monitoring and Auditing: The contingency plan should be monitored to see if it works properly, and an external body could audit it. This is the case with the Counter Pollution and Salvage Ofﬁcers (CPSOs) of the Maritime and Coastguard Agency in the United Kingdom, whose role is to approve monitoring and audit formal contingency plans.84 84

Middleton, supra note 37.

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After taking all these measures into account, the EMS of a port should ensure that a port is prepared to accept a ship in distress and minimise the environmental impact of its presence.

CONCLUSION At present in a contemporary context, there is still no unambiguous answer to the question of whether ships in distress have the right to enter to a place of refuge. Governments and port authorities are still reluctant to accept ships in their internal waters or ports if they perceive that the damaged ship poses a risk to the population, the environment, installations or the commercial activities of a port. One problem in the decision-making process is the overlap of jurisdiction between the different bodies involved (national government, maritime administration, port authorities, etc.). For this reason, the ﬁnal decision to accommodate a ship in distress in a place of refuge should be taken according to an objective risk assessment. The appointment of an independent authority to make such a decision is highly recommended. The uncertainty and lack of international uniformity concerning liability and compensation make the acceptance of a ship in distress by a port more difﬁcult. A reasonable incentive for ports could be not to have to bear the costs emanating from accepting the ship. A global solution to the subject of places of refuge is required since the problems of safety at sea and marine pollution are transboundary. The most efﬁcient level of action in this area is at the international level. Otherwise the safety of navigation or prevention of pollution would be limited to certain maritime trading regions, rather than being global initiatives. For this reason, an international convention on places of refuge and ships in distress would be convenient and would help to clarify the role of ports with regards to refuge. Some initiatives have been taken in the port environmental management ﬁeld. But new changes should be introduced in the environmental management system to ensure their effectiveness in cases of acceptance of a ship in distress. The key responsibilities should be deﬁned, the contingency plan should contemplate such situations, and personnel should be trained adequately. In conclusion, ports can play a key role in the places of refuge discussion. At the same time, there is a long way to go in order to clarify their duties and rights and what they can expect after having accepted a ship into their waters.

Chapter 7 Communications Crises and Media Management Mark Clark INTRODUCTION Ships in distress, especially if they become casualties, attract the same media challenges as other disasters, similarly to rail or air incidents if they are of a sufﬁcient scale. Even if a ship in distress is not a casualty, the manner in which the media will report such stories can have a very signiﬁcant inﬂuence on decisions that need to be taken in response to the ship. Disasters contain the very essence of hard news. They involve ordinary people, with whom everyone can identify, who have become the victims of extraordinary and horrible events. The disaster may highlight a risk to the public. Few stories have such a powerful draw for the reader, listener and viewer – and therefore the media. The media’s response to a disaster is determined by a mix of factors, the two most prominent being newsworthiness (relevance to the audience) and competition. News is the world’s most perishable commodity. There are no prizes for coming in second, either with breaking news, or with the detail and background. There are great professional dividends for the winner. Intense media interest in a shipping accident or disaster – or any major incident for that matter – is inevitable, and to many people can seem almost as bad as the disaster itself. Inadequate media and information handling worsens the 145 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 145–160. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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aftermath of a disaster. Truth suffers and those who rely on it, particularly victims. Misleading, often hurtful rumour can spread like wildﬁre. Energy and resources of emergency personnel are drained responding to falsehoods just when the load is heaviest. Dealing effectively with the media is an essential element of managing the aftermath of a shipping incident. It is a major element of the public information process serving the interests of the local community, rescue workers and the wider public interest. Good media and public information handling can deliver these objectives: • sympathetic coverage for the victims, generating support from opinion formers and the wider community • positive coverage of the work of emergency and relief workers, reinforcing morale, and developing public understanding of their difﬁculties • establishing public conﬁdence in the handling of the aftermath of an incident • providing a fund of goodwill among the media for help with publicity, or for restraint • establishing the high moral ground from which to deal with misbehaviour It is essential to involve those at the highest levels of command in the public information process. On the day of the incident, they will be involved – as decision-makers, leaders and participants. Therefore media and public information handling must be built into the emergency planning and training processes. This chapter addresses some of the issues and consequences that ﬂow from the extraordinary attention that a disaster at sea attracts. Successful handling of the aftermath of a major shipping incident disaster depends greatly on how well all the various communities and agencies of interest are kept informed and involved. This chapter will identify examples and proven good practices to stimulate awareness and appropriate preparation for some of the issues and practicalities of media handling and public information.

DISASTERS AND NEWS Public attitudes to disaster coverage are ambivalent. Relatives of victims may well hear the initial report through the media without realising that it is relevant to them. While personal news should reach them ﬁrst through ofﬁcial channels, there are many instances where a newsﬂash or a reporter’s call has been the ﬁrst news of a relative or friend’s involvement in a disaster. Many people who condemn the ‘intrusion’ obviously continue to buy the intruder’s products.1 1 A notable exception is the London-based national newspaper, The Sun, still suffering a boycott by Merseyside’s outraged residents regarding unsubstantiated reports, which blamed Liverpool supporters for the 1989 Hillsborough disaster, when 96

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However, research has conﬁrmed that many disaster victims have no great concern over normal media attention.2 After the ﬁrst contact, most will glean all they can from broadcasts and newspapers. They may well come to regard those sources as more credible than ofﬁcials whom they can come to regard as obstructive or unhelpful or party to some cover up. When formalities appear to be blocking news or even the return of their relatives’ effects, the media will provide information and often champion their cause. In the words of a Lockerbie relative, ‘There have been other tragedies in which people have waited for years before ﬁnding the truth of what happened. I would hope that the truth will eventually emerge’. 3 How long that may take is an open question. For all the attention the Lockerbie case has received in the run-up to the verdict, Dix said there have been long stretches where the world’s attention has lapsed. ‘There have been times when the media has not been interested in the story’, she said. ‘Trying to uncover the truth when there is no interest has been difﬁcult’.4

THE ROLE OF THE MEDIA Most people ﬁrst hear of a disaster through the media. Indeed, most of what they ever learn about a major marine emergency will probably come through television, radio, World Wide Web-based (WWW) news pages or newspapers. To a considerable degree, as noted earlier, the same is true for those directly affected, whether it is town or village, or just a group of people with a common interest. The reasons for this are simple. The business of the media is the unusual. As information processors, the media, with their techniques and technologies designed to deal with crises, are often better-researched, faster, less constrained and more accessible than those responding to the emergency situation itself. Of course, the media do not comprise a single organisation or have a single purpose; they have different audiences and different concerns.5 Liverpool football fans died. The Hillsborough tragedy was a case of overcrowding in the central standing area allocated to Liverpool fans at the FA Cup semi-ﬁnal match against Nottingham Forest. 2 It has been noted that survivors are keen to relate their experiences to the media as a form of catharsis or making sense of how their experience can ﬁt in to the unfolding scene. 3 Pamela Dix, in “Still searching for the truth”, Interview with CNN, 31 January 2001, CNN.com/world, <archives.cnn.com/2001/WORLD/europe/01/31/lockerbie.relative/>, 22 July 2005. 4 Ibid. 5 For example, see, Worldpress.org, <www.worldpress.org/>, 19 July 2005, an online news service that can be accessed easily and outlines ‘news’ stories for audiences across the globe.

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Increasingly, television and radio news chiefs will negotiate extra bulletin time on major networks to meet the competitive pressure of 24-hour satellite television news. It is in the public interest and the interest of all concerned to keep the media informed as fully and as regularly as possible.6 The job of the journalist – a task with which they should be helped – is to accurately to report the unfolding human tragedy. Beyond the immediate aftermath, news coverage becomes a fascination, a mirror in which the community looks to see itself as others see it. The effect of news coverage on morale cannot be overstated. Despite the great tide of news coverage, outside help and other activity that engulfs a community after a disaster, many of those involved still feel isolated and badly informed. They want and need to be kept informed and to be told that the world cares. This is instinctively understood in the case of victims or their relatives. However, it is just as important for relief workers, especially if the aftermath is prolonged. These are the people who must cope with the unthinkable in hospitals and mortuaries; those who provide invaluable basic support services under difﬁcult conditions; and yet others who shoulder the emotional problems of shocked survivors. Often reluctant to take their woes home, their families and friends will only be able to understand their difﬁculties from news reports. Like the general public, their personal interest in media reports will become intense. Their parent organisations often will not have the resources (or even the overview of the situation) to provide independent comprehensive information on the situation. People will work incredibly hard during a crisis, and all of them deserve and need praise and support, both in public and in private. In many ways, therefore, handling the media aspects of a disaster is a vital leadership role. There is nothing wrong in expressing pride in a job well done; indeed, it is very important to do just that.

MISINFORMATION An important element of the media and public relations functions is ensuring that accurate and timely information is provided to all media outlets. Failure to consider the media response at an early stage of a maritime incident may have serious implications for the management of the whole incident.7 Accuracy and

6

The Draft National Contingency Plan for Marine Pollution from Shipping and Offshore Installations (hereafter NCP), (London, MCA, 2005), was released for public consultation for the period June–September 2005, <www.mcga.gov.uk/c4mca/mcgaenvironmental/mcga-dops_cp_environmental-counter-pollution/mcga-dops-cpr-ncp_ draft.htm>, 19 July 2005, Section 10.1. 7 Ibid., section 10.1.

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clarity are vital in dealing with the media. All ofﬁcial information must be checked before release. The victims of London’s Marchioness Riverboat disaster in 1989 learned ﬁrsthand the dark side of ill-formed coverage.8 Public sympathy was dimmed by implications that they were ‘just’ rich young people. The problem arose because the only information available to the media was second-hand and speculative.9 The frustration and anger of the survivors and the relatives of the dead is still evident.10 Much grief could have been averted by better-informed public opinion through a well-managed public communications plan at the outset of the incident. While some photographers and reporters act outrageously, the media are increasingly aware of the considerable adverse reaction of the public to its coverage of certain incidents11 and are sensitive to any charges of intrusion, lack of sensitivity, or inaccuracy. Collectively, the media now show open disapproval of contemporaries whose behaviour further threatens their collective image. Codes of practice have been published, including the BBC’s Producer’s Guidelines and those from the Press Complaints Commission.12 These guidelines are explicit about the treatment of disaster scenes and victims. However there is no international consensus on the boundaries of acceptability. Thus pooled broadcast media might come in two (or more) versions for different national audiences. Media output should be monitored and inaccuracy dealt with immediately and at subsequent press conferences. Such monitoring can place in many forms, with some agencies devoting great resources to effective coverage and evaluation from the outset of the breaking story. The remedies for inappropriate media coverage are to develop general awareness of their likely presence; to leave little vacuum for them to ﬁll and thereby little excuse for their actions; and to condemn them openly and quickly. There must be a constant dialogue with the media to deal with inaccurate information before it takes root. The media should be able to reach ofﬁcial sources at any time to check stories. If ofﬁcial sources cannot provide good information swiftly, the media will go elsewhere with obvious consequences; those with the information will have only themselves to blame. It is also essential to complain to their editors. Beware, however, of exacerbating the distress of victims. 8

See, Non-statutory Inquiry website for the ‘Marchioness/Bowbelle’ disaster, <www.marchioness-nsi.org.uk/>, 19 July 2005. 9 Ibid. 10 Ibid. 11 1st Damien Walsh Memorial Lecture delivered by Roy Greenslade, Former Editor of The Mirror and Media Commentator for The Guardian, 4 August 1998. 12 See, BBC, “Editorial Guidelines”, <www.bbc.co.uk/guidelines/editorialguidelines/>, 22 July 2005, and the Press Complaints Commission, <www.pcc.org.uk/index2. html>, 22 July 2005.

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NEW TECHNOLOGIES: CHANGING THE FACE OF MEDIA RELATIONS? The news media (broadcasting, print and text services) have been joined by other technologies as the primary means of communicating with the public. Increasingly, the online world is the place for breaking news. The next generation of mobile phones, organisers and laptops, make the WWW available to you wherever you are. Advances in technology mean that live interviews and reports can now be sent directly from the scene of an incident via a mobile phone as the event unfolds.13 Live streaming and other formats bring high quality audio and video to users across the globe. But the Web is not just about reading stories. The WWW is increasingly a place where news is made.14 Today it is equally important to use the WWW as a tool in managing a crisis. As part of an integrated communications plan (which includes centralised call centres or emergency hotlines and use of print and broadcast media), a website can be a useful source of detailed information and advice, serving both the public and media alike. To be useful, however, ready-prepared websites that can be activated in a matter of hours are required. Such websites must be ﬂexible, well edited and updated regularly if they are to be credible and useful. A website can also provide links to other relevant websites, e.g., major news providers, central and local government agencies, emergency services, and any involved corporations. An example of the use of a website during such a crisis illustrates these points. The safety of a well-known transatlantic cruise vessel came into question when the source of ﬁre retardant material was queried by a rival producer of such material and those accusations were brought to the United Kingdom Maritime and Coastguard Agency (MCA) by the British Broadcasting Corporation (BBC).15 Once the story broke, the Web was used to great effect both by the MCA and the owner of the vessel to reassure potential customers

13

NCP, supra note 6, section M.3. For example, after the Turkish earthquake a few years ago, the ﬁrst e-mail was received in London within 14 minutes. A ﬂood of eyewitness accounts then came in, followed by appeals for help to trace missing people. Amazingly, many ‘surfers’ used their local knowledge and local phones (which still worked) to track people down or say which streets had been damaged and emailed their information. One person wrote to say: ‘I was on the Internet chatting with some friends, suddenly the monitor started shaking. . . . I threw myself on the bed, the room was shaking and there were crunchy noises coming from the walls’. One Istanbul resident e-mailed saying, ‘As I am typing this I can feel the tremors shaking the building. It is very frightening. It was so powerful that when it ﬁrst started I was thrown out of my bed’. BBC Online, “World: Europe eyewitness accounts from Turkey quake”, BBC News, , 22 July 2005. 15 See, “Urgent safety work starts on Queen Mary 2”, BBC News, 26 June 2004, , 19 July 2005. 14

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across the globe that this ﬂagship Red Ensign vessel was still a safe and enjoyable method of travel despite the short-term difﬁculties, which were being immediately addressed on board to the MCA’s satisfaction. Any potential loss of trade was greatly mitigated by such prompt response. The WWW is already an important part of any news gathering operation. Both ITN and the BBC, like other leading broadcasters, have invested heavily in on-line journalism. On an average day a major news site will get up to six million page views. If a big story breaks, we expect that number to double.16 For example, on 11 September 2001, most news gatherers websites collapsed under the weight of ‘hits’. After a late start, the BBC has one of the most signiﬁcant ‘hit’ rates in the world.17 Audio and video inserts are available in an ever-changing format, which makes deadlines a thing of the past. When is the next edition? When is the next programme? When is the next bulletin? As soon as you have ﬁnished writing, a story can be posted to the WWW, available to be read worldwide. Stories are updated constantly. An example of the breath of these technologies is provided by the media services of The Press Association, the premier UK national news gathering agency, which publishes over three hundred new stories each day in newspapers, magazines, TV and radio broadcasts, and digital platforms. People are accessing a total of 45,000 different stories each day, and in greater depth. The Association’s three core editorial values, fast, fair and accurate, are all equally important. These are the guiding principles for everything The Press Association reports, photographs, writes or broadcasts and they underpin the agency’s reputation for journalistic integrity. As The Press Association’s ofﬁcial history says: ‘Throughout the media industry, the PA has a reputation for speed, accuracy, fairness and ﬂexibility. It does not have any political views. It writes no opinionated editorials – or editorials of any kind whatsoever. It does not campaign or crusade. It simply gathers the news and the pictures and distributes them as fast as modern communications systems will allow’.18

THE MEDIA PROCESS – THE FOUR MS Disasters make enormous demands on everybody, including the media. There has always been great pressure for information and pictures, but increasing

16 Following the London Tube explosions on 6 July 2005, the BBC News website received a record 115 million page views, more than ﬁve times the daily average, “Record trafﬁc to BBC News site”, 11 July 2005, BBC News, , 19 July 2005. 17 BBC, BBC Annual Report and Accounts 2001/2002 (London, BBC, 2002), <www.bbcgovernors.co.uk/annreport/report02.html>, 19 July 2005. 18 The Press Association, <www.thepagroup.com/about/editorial.php>, 25 July 2005.

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competition and the growing number of media outlets have magniﬁed the problem enormously. But whatever the disaster, and whatever its size, the pattern of media inquiries and subsequent reporting always falls into these four recognisable phases: • Mayhem: the immediate aftermath: a mad scramble to know what, where, when, why and how; and to get the picture • Mastermind: a search for all the relevant background information and history • Manhunt: the search for error, fault, and the person(s) to be held responsible • Memorial phase: the long-term aftermath and follow up; the inquiries, trials, memorial services, reconstructions and documentaries; the pressure groups The ﬁrst three Ms manifest themselves very quickly. The cycle took nearly 20 hours in the coverage of ‘Piper Alpha’ (see text box); speculation on the bombers identities began very quickly after the London Tube bombings of 2005.19 The memorial phase can last for years.20 The thirst for pictures often seems exaggerated during a crisis. Even though ‘quality’ newspapers depend on the gathering, analysis and presentation of information, every newspaper requires striking, high quality photographs. Television has special needs. It can only operate effectively for its audience – the biggest and most easily inﬂuenced – if it has relevant, meaningful, up-to-the minute pictures. Broadcasting teams are not just expected to get pictures and sound back to the central base quickly, they are required to provide continual live coverage from the scene. Broadcast media’s combination of demands and its very technology make it the most intrusive medium, but it also has very considerable power to set the agenda. As broadcasting crew and newspaper staff are dispatched to the scene, their headquarters newsrooms will be just as busy. Reporters will be ‘bashing’ the phones,21 and editors will be watching the competition and other news agencies closely. A broadcaster’s ﬁrst competitive priorities are facts and actuality (pic-

19

See, BBC News coverage, <www.bbc.co.uk/1/hi/in_depth/uk/2005/london_explosion/default.stm>, 19 July 2005. 20 Audrey Gillan, “Marchioness families win inquiry 10 years on: Victory for survivors and bereaved as Prescott orders investigation.” The Guardian, Thursday, 19 August 1999, <www.guardian.co.uk/uk_news/story/0,3604,270380,00.html>, 22 July 2005. 21 ‘Phone bashing’ is the telephonic equivalent of the physical rush to the scene. As news comes in, newsroom reporters ring all likely ofﬁcial and informal sources. They comb local telephone directories, seeking witnesses willing to talk, or even be interviewed for broadcast news bulletins. They ring every government department, local council, emergency service, or hospital likely to get involved. Expert comment is sought, for guidance in following the story and for quotation. Most major news organisations keep lists of experts who are often retained to be available for instant quotation at any time.

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The ‘Piper Alpha’ – Hundreds of Questions The ‘Piper Alpha’, a North Sea oil production platform operated by Occidental Petroleum (Caledonia) Ltd. and Texaco, was destroyed by an explosion and resulting ﬁre on 6 July 1988, killing 167 men. The disaster generated thousands of telephone enquiries and a huge number of questions, including: • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

numbers and nationalities of people on board, dead alive numbers and nationalities of rescue vessels chronology of the accident interview requests for Coastguard ofﬁcials, inspectors, survivors, ministers, company ofﬁcials, and pilots facility requests for other platforms and safety inspection visits history of the platform, of the North Sea, and related disasters likely economic effects technical background to North Sea activities, every conceivable detail of the regulatory and safety regimes comparison of different platform types and of Norwegian and UK safety regimes detailed statistical information names of recent inspectors details of judicial and investigative procedures in the UK and United States insurance arrangements and liability of all the parties concerned industrial relations arrangements, rights and procedures comparison of rights of workers onshore and offshore regulations concerning smoking and drinking offshore safety equipment types, capacities, age, design and country of manufacture safety training regimes, arrangements and plans for the North Sea, and the testing of those plans history of safety enforcement and the penalties for non-compliance how to put out oil ﬁres how to spell Red Adair and the likely size of his bank balance analysis of license holders and investors in the North Sea manufactures and designers of all equipment on the platform; and which other platforms used the same equipment likely public inquiry and its remit, chairman, type, location, powers, witnesses and probable duration legal status, powers of and precedents for a disaster fund; likely government, company, charitable or other donations; likely trustees history of disaster funds and common problems consultative arrangements with trades unions, companies, consultants history of trades union organisation offshore history of trades unions’ complaints about safety problems

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tures and sound from the scene); its ﬁrst professional priority is for accuracy (although the two sometimes conﬂict). A broadcaster’s next priorities are analysis and comment. Much the same will be happening in print media ofﬁces. While newspapers also compete using pictures, the volume of facts, breadth of coverage, and depth of analysis give them an advantage over broadcaster media. Two pages of a broadsheet newspaper can easily carry more information than a 25-minute television bulletin. Television and radio break the news, but newspapers compile the ﬁrst draft of history. Cuttings are the major sources for follow-up stories and research, not videotapes.

ROLE OF THE LOCAL MEDIA For the local community, including relief workers, local media play a critical role. Their audience sees them as part of the community, a source of information and advice, as well as news agent. It is important to establish and maintain good relationships with local media – they will still be there when the national agencies have gone home. Importantly, they also have the ability to deal authoritatively with rumours or with partial information carried by the national media. The immediate aftermath of a crisis gives local radio a special role to play in managing the crisis itself because great numbers of people at home and in vehicles will immediately tune in. After a disaster, a very high priority must be given to providing local radio with frequent, accurate and timely information so the public can feel conﬁdent, safe and well informed. Although local newspapers lack the immediacy of broadcast media, they can provide more detail and advice in a form that can be kept, referred to and passed on to others. They must also be kept well briefed. In essence, as the local media spread the news, they move hearts, minds and morale, inﬂuencing the ﬂow of sympathy and support (ﬁnancial, physical, psychological and political) to those directly handling the crisis.

MEDIA MANAGEMENT Media Handling Constructive attitudes among media handlers are essential. Today’s journalists, easily accessible by satellite phone, face pressure stemming from the constant demand for contact and information, and a stream of instructions, from their news desk.22 In the midst of chaos, when tempers are fraying and stress is high, 22

As journalists are increasingly hired on short-term contracts, or work as casual staff, the pressure of lack of job security needs no explaining.

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the simple presence of cameras and notebooks are provocative to those trying to deal with the crisis. Journalists are often an easy and obvious target for the release of frustrations. A primary task of the media handler must be to minimise friction. Frankness, openness, professionalism, courtesy and understanding are powerful advocates. These are the essential tools of the media handler. Media handling requires people who can negotiate sensible arrangements, allowing the emergency workers and other agencies the best chance of doing their jobs, while giving the media the best reasonable chance of doing theirs. When you look for candidates, seek people who • • • • •

have some relevant experience have had or will absorb some training display negotiating and leadership skills have great reserves of patience and good humour, and possess (above all) common sense

Media handlers must be team players, willing and able to liaise effectively with all their counterparts. Accuracy, sensitivity, urgency, co-ordination and co-operation are key operational watchwords. Management of media and public relations staff during a crisis requires adequate resources and advance planning. Ideally, media relations should be a 24hour operation during a major crisis. This requires a well-trained cadre of staff available on short notice work on shifts for the duration of the crisis. Advance planning for brieﬁng arrangements (when shifts change) and support measures (e.g., provision of food and transport) will allow the media team to focus on the task at hand.23

Ofﬁcial Level Contact: The Role of Parliament and Government Agencies In the immediate aftermath of a major disaster in the UK, one government department will take the lead role. In the event of a maritime incident, MCA assumes responsibility. Often the process will be swift and obvious. For example, a Coastguard station receiving a report of a pollution incident immediately contacts the duty Counter Pollution Ofﬁcer and also alerts the Duty Press Ofﬁcer.24 In more complex circumstances, the Cabinet Ofﬁce’s Civil Contingency Unit will nominate the lead Department.25

23

Society of Editors, “Analysis of an emergency. Cardiff 2000 Live: Session Five,” 16 October 2000, <www.ukeditors.com/articles/2000/October/Conference297.html>, 16 June 2005. 24 NCP, supra note 6, section M.6. 25 See the Civil Contingencies Bill, UK House of Commons, <www.publications.parliament.uk/pa/cm200304/cmbills/014/2004014.htm>, 22 July 2005.

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Parliament expects the government to bring it the facts about any major civil emergency as soon as possible. For that reason, one can expect the lead department to get in touch with the lead agencies very early on. Within hours of a major site-speciﬁc disaster, a minister from the lead department will visit the scene, often accompanied by a private secretary, a press ofﬁcer, and one or more ofﬁcials from the relevant division. Such fact-ﬁnding visits serve to demonstrate the government’s concern and involvement, facilitate support and help, gather information for Parliament and ministerial colleagues, and inform decision-making on, for example, the form of any inquiry. However, a visit to a wide area disaster (e.g., a ﬂood), may not take place for a day or two. While they will keep closely in touch with their staff, ministers will not want to be in the way of emergency responders, nor will they want to be perceived to be exploiting a disaster. For example, a minister will generally resist any media presence during hospital visits.26 In some crises, a hotline for members of Parliament who need up-to-date information might be set up.27 A minister’s most important concern is to get a grasp of the situation and ensure that the central government is providing all the help it can. In particular, he/she will be acutely aware of the lead department’s role in co-ordinating the government’s response to the incident. He/she will have been briefed by ofﬁcials before arriving at the scene, and will be anxious to hear the views of those managing the aftermath. At the scene, the minister will wish to meet disaster workers, survivors, relatives, and members of the public to ensure that what is being done is appropriate, effective and swift. The minister will want to do all this before meeting the media for a news conference or interviews.

THE MCA EXPERIENCE Part of the MCA response to all maritime incidents is handling media interest. To this end, MCA employs a team of professional public relations and media ofﬁcers. As noted above, in the event of a maritime emergency, the MCA duty press ofﬁcer will be notiﬁed.28 The National Contingency Plan sets out details of the suggested procedure for dealing with the media from the outset of a major incident, including personnel arrangements for a media liaison centre, media relation pointers, and guidelines for managers and staff.29 A crisis media

26

However it is worth knowing that during further ﬂoods in South West England in August 2004 the town of Boscastle was visited in quick succession by both the Deputy Prime Minister and Prince Charles. 27 Society of Editors, supra note 23. 28 NCP, supra note 6, section M.6. 29 Ibid., see Appendix M.

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team would initially consist of, among others, MCA media ofﬁcers, local authorities, police, and port authority representatives. The crisis media team could also immediately alert and use Government News Network press ofﬁcers (GNN) from the local area to supplement the MCA press ofﬁce response. The MCA can put such an arrangement into place at short notice if GNN ofﬁcers use their own mobile phones while key personnel travel to the site. This arrangement is free for the ﬁrst 24 hours for UK government departments. Depending on existing local circumstance (for example, the GNN press ofﬁcer may already be committed to the Gold control30 and/or a suitably identiﬁed Media Brieﬁng Centre), GNN should be able to provide support to MCA. This would be equally true in the event of a continuing incident. In such cases, there will be a need for a shift system to operate, and GNN could support the MCA operation until the crisis has passed or is scaled down. Whilst managing a crisis there will be a need to set up certain procedures:31 • The initial focus of attention for the media is the area of operations, and the search for information and brieﬁngs is instantaneous. During this initial period, when the build up of emergency services resources is taking place, the exercise of control is imperative, as a means of assisting the media. • Media ofﬁcers must quickly decide who leads on media accreditation, noting the location of journalists at short notice, and recording attendance and contact details. This will inhibit special interest groups from diverting the media’s interest. Where circumstances permit there may be a need for issuing on-site press passes. This allows rapid identiﬁcation of those allowed access into certain areas. • Media ofﬁcers must also quickly appoint a key spokesperson (spokespersons) to lead and ‘front’ the media operation during the initial stages, and to act as liaison on technical issues with the media. • All interested parties need to agree joint statements. Press ofﬁcers from each agency must consult closely to ensure a co-ordinated approach to the media. • It is essential that the lead press ofﬁcer or public relations manager attend and participate fully in the senior management arrangements for the incident. By attending senior level meetings, for example, he or she can be fully in the picture and plan the media response. Such a key individual would oversee all aspects of the media response, including:

30

‘Gold control’ refers to the top level of strategic decision-making normally chaired by a senior policeman within the UK force locality. (‘Silver control’ contains the tactical decision makers whilst ‘Bronze’ leads on delivery and direct operational matters.) 31 Full explanation of these issues can be found within MCA’s National Contingency Plan, section M.14 of the Draft NCP, <www.mcga.gov.uk/c4mca/ncp_draft_formatted_ june_2005.pdf>, 22 July 2005.

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° activities at the media liaison point or centre ° arrangements for the media to visit the site, possibly including transport ° accreditation of bona ﬁde journalists, and ° arrangements for overall monitoring of media output Initially the media may need a reminder that, in the period immediately following a major incident, nobody can know precisely what has happened. Initial statements should focus on what is happening, what the limitations of knowledge are at the time, and what is being done to arrive at a fuller appreciation of the situation. If such statements include a commitment to provide accurate information as soon as it is available, media personnel are more likely to attend brieﬁngs and thus accept a measure of control, particularly if the brieﬁngs take place at regular intervals. Initially very regular brieﬁngs should take place to assuage the media’s requirements. The media welcome any factual statements, particularly from emergency services’ eye witnesses. However, such statements should not include speculation on the cause of the disaster, nor premature or uncorroborated estimates of the number of casualties. Those brieﬁng the media should take care not to release information about casualties until details have been conﬁrmed and the next of kin informed. In the event of, say, a ferry disaster, it is necessary to explain that it will take a long time to identify victims. Limitations on the release of information, often because of the need to avoid prejudicing what may become a criminal prosecution, require a clear and frank explanation.

CONCLUSION: A MEDIA HANDLING CHECKLIST Communications management in the aftermath of a shipping disaster is an integral component of broader crisis contingency planning. When an incident occurs, a key objective is to deliver accurate, timely information and advice to the public and other interested parties so they feel conﬁdent, safe and well informed.32 The UK, in particular the MCA, has had experience in dealing with such incidents and exercises, and has developed tools to ensure that this objective is met. From this experience, we can draw several lessons. The following checklist is necessarily generalised (smaller incidents may not need all the elements described; larger incidents will need more), but serves as a guide to developing

32

NCP, supra note 6, section M.1.

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media relation plans for marine emergencies.33 Like the primary responders to a marine incident, the media have an important job to do under difﬁcult circumstances; working together serves the interest of all involved in the crisis.

A Media Handling Checklist 1. At the site(s), organise media facilities (rendezvous points and vantage points) to ensure that rescue and other work continues unhindered, while allowing media personnel to do their jobs with a minimum of hindrance. Make use of the press card to exclude fools and ghouls, and ask the media to nominate pools to cover restricted facilities. 2. Put up spokespeople who are as senior as possible, clearly identiﬁable as such and who have been trained to answer media questions. 3. Establish a dialogue with the media, not only to discover their needs and requests, but to provide the means for dealing with problems and the dissemination of public information. This will require a focus: ﬁrst, the rendezvous point mentioned above, and then some form of press centre, which must be staffed as long as necessary (assume a 24-hour operation). 4. Establish a ﬂow of credible information. Set up a media co-ordinating group to mirror any overall control group. The media co-ordination group should oversee the press centre. Information for the media must be accurate, swift, authoritative, and consistent. Ideally, any control group must speak with one voice, thus information presented to the media must be underwritten by all those involved. The media co-ordinating group should log and record all information that is released, and ensure that all information providers (for example, headquarters press ofﬁcers) are kept up-to-date. The media must be able to check stories with ofﬁcial sources at any time. 5. A media strategy with clear objectives must be agreed to by the emergency control group, who must also review progress regularly. The necessary specialist skills and advice must be represented on the control group by the chairman of the media co-ordinating group (who will probably be the senior public relations professional from the lead organisation). 6. The media co-ordinating group should continually brief key staff at all levels on what the media are asking and saying. Media monitoring must be used to determine the effectiveness of the media strategy and to tackle misinformation. 7. When organisations cannot take the same line (for example, where a regulatory body must speak independently), use the co-ordinating group to ensure

33

Ibid., Appendix M of the Draft NCP includes a detailed planning checklist to deal with all aspects of handling the media during a crisis.

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that those involved have a clear understanding of what is to be said before any information is released. 8. Establish a collection plan for interesting, non-conversational information that can ﬁll the gaps between the releases of hard information about the event. Stories of individual endeavour, swift thinking, initiative, hardship, or selﬂessness, will always be available, and will play a valuable role in maintaining the focus of the media on ofﬁcial sources and on facts. 9. Deal with poor media behaviour swiftly and directly, not only with the journalist concerned but also with the most senior editorial executive who can be contacted. Strong views may also be offered openly at press conferences, but be aware of exacerbating the distress of victims, and make sure the facts are right. 10. Arrangements for VIP visits should be considered at an early stage, so that the inevitable disruption is kept to a minimum, and the beneﬁts are maximised. There should be a nominated person to deal with these visits. VIP brieﬁngs must aim to ensure that the VIP who will talk has plenty of information from which to brief the media and others on the efforts and needs of all involved. 11. The complex needs of victims with respect to the media should be considered by the control group and the media co-ordinating group. Many walking and willing wounded may beneﬁt by describing their experiences, shielding those who want their privacy. 12. Remind everybody that the man or woman with the notebook, or tape recorder, or camera, is trying to do their job under difﬁcult circumstances, just as others are. Unless they prove otherwise, they deserve the same courtesy and consideration as anybody else. Give none, and you will get none, despite all the smooth talking, elegant press releases, or robust responses you can muster.

PART II LEGAL AND POLICY PERSPECTIVES AND RESPONSES

Chapter 8 The Customary Law of Refuge for Ships in Distress Aldo Chircop* INTRODUCTION This chapter focuses on the nature and content of the custom of granting refuge to ships in distress. Although of unknown origin, this custom is perhaps one of the earliest precursors of international humanitarian law and has been applied in both the law of peace and war. There has always been something special about this custom, perhaps because it is an exception to the general rule that there is no right of entry into a port, unless there is a treaty conferring such right to the ships of the ﬂag state concerned.1 Even as an exception today, it

* The author is grateful to Robert Bauchspies (Head of Information Services), Susan Wangeci-Eklöw (Assistant Librarian) and Cecilia Denne (Library Assistant) at the World Maritime University for their assistance in securing documentation and bibliographic data. The author is also indebted to the Dalhousie Law School library, in particular to its staff Ann Morrison (Law Librarian) and David Michels (Public Services Librarian) for their invaluable support and assistance. 1 A. V. Lowe, “The Right of Entry into Maritime Ports in International Law”, 14 San Diego Law Review, 1977, 597–622.

163 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 163–229. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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probably does not necessarily imply a right to enter, as distinct from a right to receive assistance, which may include port entry. It is also an exception to the general rule that innocent passage must be continuous and expeditious and that stopping and anchoring are not permitted in the territorial sea.2 Perhaps it is this ‘exceptional’ nature of the custom that is particularly intriguing, especially in a modern context where the principles of territoriality and protection are dominant in the international law of the sea. And like any custom, the refuge custom has been dynamic, with its entitlements, privileges, conditions and applications evolving considerably over time. It is argued by some that the earlier property dimension of the custom has receded, but the basic humanitarian principle, which was there from the beginning, has survived with little change. In more recent times, the application of the custom has been inﬂuenced by a new conventional law of the sea, growing global environmental concern and coastal states’ perceptions of threats to their interests. New developments in refuge practice have occurred in response to recent and publicised maritime casualties where coastal states refused refuge to protect their interests, including situations where refusals may have contributed to the ensuing casualties. A contentious debate ensued at the International Maritime Organization (IMO), resulting in the adoption of Guidelines on Places of Refuge for Ships in Need of Assistance (IMO Guidelines) to assist decision-making in such situations.3 More recently, the IMO also considered the possibility of initiating the development of a new convention on the subject in response to perceptions that the refuge custom is insufﬁcient to deal with the contemporary problem of refuge for ships in distress that pose signiﬁcant risks to coastal states. However, the IMO declined to proceed on such an initiative at this time. Perhaps one of the issues at the heart of the matter is the contemporary status of the refuge custom and its sufﬁciency or otherwise in relation to the modern context of places of refuge for ships in need of assistance. At the same time, and because customary law is inherently dynamic, it is appropriate to consider the extent to which the practice behind the custom may be changing in response to new community needs. The author undertakes a historical survey of state practice that appears to have supported the custom over time. The custom is considered from both the perspective of the ship and persons requesting refuge, and the perspective of the coastal state authorities considering the granting of refuge, and their respec-

2 Convention on the Territorial Sea and Contiguous Zone, Geneva, 29 April 1958, 516 U.N.T.S. 205, Art. 14(3); United Nations Convention on the Law of the Sea (hereafter LOS Convention), Montego Bay, 10 December 1982, UN/Doc. A/CONF.62/122, 7 October 1982, Arts. 18(2) and 39(1)(c). 3 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/RES.949, 5 March 2004.

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tive rights and responsibilities. The author attempts an assessment of the state of the refuge custom.

FRAMEWORK AND APPROACH FOR THE FINDING AND ANALYSIS OF THE REFUGE CUSTOM Customary law is a major source of international law. In its statute, the International Court of Justice is empowered to apply, among other, ‘international custom, as evidence of a general practice accepted as law’.4 Despite its status as a major source, the determination of its existence and content presents special problems. Unlike treaty law, whose status and scope of application can be readily determined by referring to the treaty itself, there is no such quick reference for a customary norm. Customary law does not have an instrument setting out the framework for the ascertainment of its existence, status and interpretation comparable to that for treaty law in the Vienna Convention on the Law of Treaties.5 By deﬁnition it is not written law, although written instruments may constitute evidence of the existence of a custom. The authoritative determination of the existence of a particular custom is normally undertaken by an international tribunal, such as the International Court of Justice, and only when called upon to do so as a result of a case it is seized of, such as in the North Sea Continental Shelf Cases 1969.6 In the absence of such judicial determination, its recognition is in the hands of states that choose to recognise its existence, whether explicitly or implicitly. However, it is perfectly possible for some states to refuse or ignore the existence of a speciﬁc custom, while others observe it at the same. It is subject to the vicissitudes of international relations.7 There has been a signiﬁcant ongoing doctrinal debate on the nature of custom as a source of law involving some of the leading international jurists of the last ﬁve decades.8 At the heart of that debate is the nature and relationship of the

4

Statute of the International Court of Justice, San Francisco, 26 June 1945, U.K.T.S. vol. 67 (1946), Art. 38. 5 Convention on the Law of Treaties, Vienna, 23 May 1969, 1155 U.N.T.S. 331. 6 North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of German/Netherlands), Judgment, ICJ Reports 1969, paras. 37–69. 7 M. Byers, Custom, Power and the Power of Rules (Cambridge, Cambridge University Press, 1999), 19. 8 E.g., see: Z. K. Slouka, International Custom and the Continental Shelf: A Study in the Dynamics of Customary Rules of International Law (The Hague, Nijhoff, 1968); Anthony D’Amato, The Concept of Custom in International Law (Ithaca, NY, Cornell University Press, 1971); H. W. A. Thirlway, International Customary Law and Codiﬁcation: An Examination of the Continuing Role of Custom in the Present Period of Codiﬁcation of International Law (Leiden, Sijthoff, 1972); R. Bernhardt, “Customary

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two critical components for the formation of customary international law, namely a material element in the form of practice and an accompanying psychological element attesting to the perception of an obligation, the so-called opinio iuris sive necessitatis. The longevity of the refuge custom, including wide recognition of its international customary law status, enables this author to avoid the doctrinal concerns concerning its very existence, because of origin (i.e., what practice generated the custom), the amount of state practice needed and evidence of opinio. Even so, although the task of describing the practice that contributed to the emergence and content of the custom is somewhat lightened, the burden of mustering the evidence remains. The evidence must attest to a ‘general practice accepted as law’. The doctrinal literature on international customary law holds that the practice must show a sufﬁcient degree of convergent conduct by a signiﬁcant number of states and that is continued and repeated over a period of time.9 It needs to be demonstrated that the actors of that practice acted in response to an expectation from them, and in turn acquiesced in the similar practice of other states. State acts, such as treaties, diplomatic practices and national legislation, inter alia, constitute such practice. Such acts are recorded expressions of recognition and intent of state organs. Policy and administrative acts have the effect of further operationalising that intent. Occasionally, international and domestic tribunals may be called upon to ascertain the existence and content of a customary rule in a particular context, and in doing so may reﬂect on its broader scope. Leading jurists, who frequently advise foreign ministries or possess judicial or arbitration experience may provide authoritative opinion on the practice behind the custom. Although judicial and juristic opinions are not ‘state practice’, they constitute important and authoritative understandings of the state of the custom, especially opinio.10 During research, the author observed that the major practices that constitute evidence consist of a mixture of ‘practices’ for different periods of time. To International Law: New and Old Problems”, in: Thesaurus Acroasium, vol. XIX (Thessaloniki, 1992); K. Wolfke, Custom in Present International Law (Dordrecht, Nijhoff, 1993); M. E. Villiger, Customary International Law and Treaties: A Manual on the Theory and Practice of the Interrelation of Sources, 2nd rev. ed. (The Hague, Kluwer, 1997); O. A. Elias and C. L. Lim, The Paradox of Consensualism in International Law (The Hague, Kluwer, 1998). 9 See, for instance, D’Amato’s critical analysis of these requirements, and in particular the critique of Hudson’s formula in the International Law Commission’s deliberations. D’Amato, supra note 8, at 7 et seq. 10 The opinions of leading jurists are an important element in the study of custom. According to its Statute, the International Court of Justice may apply the ‘teachings of the most highly qualiﬁed publicists’ as a subsidiary means to determine the law. On the role of legal doctrine see Thirlway, supra note 8, at 32–33.

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facilitate this undertaking, the historical survey is divided into three major periods, each of which required resort to different materials. The ﬁrst concerns the period from the earliest references (that per se do not attest to actual origin) up to the 16th century. The reason for this cut-off is the Peace of Westphalia, concluded in 1648, which gave rise to the modern state system, ushering in an era of modern diplomacy, including a widespread bilateral treaty practice relevant for this study. The principal sources here have tended to be a mixture of historical and literary accounts, ancient maritime codes and laws, and treaties. The second period covers the 17th to the 19th centuries, and until the Hague codiﬁcation processes concerning the law of armed conﬂict. With the Hague Peace Conferences a new era of multilateral law-making was ushered in and serves as a useful historical milestone. The practice in this period is preponderantly in the form of important bilateral treaties. There is some domestic legislation and case law that are also indicative of the state of the custom and its effects in the minds of law-makers and judges respectively. The period from the 19th century to date is the third for analytical purposes. It is a period where there is extensive multilateral and bilateral diplomacy. The materials are thus multilateral and bilateral instruments, as well as domestic statutes and case law. There are also numerous domestic and international policy instruments and operational manuals that are useful. The latter period also includes deliberations of IMO that has played, and continues to play a signiﬁcant role.11 In an all three phases, the writings and observations of jurists in each period, and in the last period deliberations within the Comité Maritime International (CMI), are also considered as they reﬂect the views of maritime law practitioners and scholars. The discussion in each section, and with reference to the various categories of evidence, is organised chronologically. Although refuge has been available to all ships, the recorded practice behind the custom is in relation to commercial vessels, ﬁshing vessels and warships. In a modern context it is thus necessary to explore various legal ﬁelds in order to get an insight into the custom, including general international law, law of the sea, maritime law, law of armed conﬂict, international trade law (in particular in relation to the development of most favoured nation clauses), international humanitarian law and international environmental law. For example, in examining bilateral treaty practice, the principal relevant agreements were peace settlements, treaties of friendship, commerce and navigation, and to a lesser extent peace settlements and ﬁsheries agreements. This is also reﬂected in the pertinent domestic laws of some states. Perhaps surprisingly, there is relatively little reference to the refuge custom in multilateral treaties, even in treaties that purport to codify the international

11 Thirlway writes that Art. 38 of the ICJ Statute is not exhaustive in listing sources of international law. He cites several writers that have looked at UN law (e.g., UN General Assembly resolutions) as sources. Supra note 8, at 40–41.

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law of the sea or which have developed modern international maritime law, and what references are available are more implicit than explicit. Thus the most important international instrument is the bilateral treaty. D’Amato writes that treaties ‘in fact are the records of state acts and commitments that continually shape, change, and reﬁne the content of customary law’.12 The extensive bilateral treaty practice surveyed in this chapter reﬂects the highly consistent practice, even though not perhaps in uniform text. Many of the treaties examined were extended or re-negotiated over time, but the central idea survived. The international custom has also been considered or recognised by some domestic courts. Several key sequential questions have guided this author in collecting and analysing research data, namely: what are the earliest recorded practices of a ship/crew taking refuge? What was comprehended by those practices? At what point can it be said that there was sufﬁcient and recognised ‘state practice’ to give rise to a general acceptance of the customary norm in the form of a right and a corresponding obligation? Was the right exercised under any conditions, and if so, what were they? What is the status of the custom, and what are its consequences today, in the light of current trends in state practice and the IMO Guidelines?

HISTORICAL DEVELOPMENT Origins to the 16th Century Early Practices As with many ancient customs, the origin in time or in terms of speciﬁc practise of this particular custom is difﬁcult, if at all possible to trace. It is also challenging to trace sufﬁcient early practice to support the proposition that a custom had in fact developed. An early literary reference that alludes to some sort of an expectation by distressed seafarers to hospitality appears in the Odyssey, which was written by Homer circa 800 BC. Ulysses and his crew encounter the Cyclops on an island and after mustering enough courage Ulysses tells the Cyclops: We are Achaeans on our way home from Troy, but by the will of Jove, and stress of weather, we have been driven far out of our course. We are the people of Agamemnon, son of Atreus, who has won inﬁnite renown throughout the whole world, by sacking so great a city and killing so many people. We therefore humbly

12

D’Amato, supra note 8, at 128.

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pray you to show us some hospitality, and otherwise make us such presents as visitors may reasonably expect. May your excellency fear the wrath of heaven, for we are your suppliants, and Jove takes all respectable travellers under his protection, for he is the avenger of all suppliants and foreigners in distress.13

Although the Cyclops rejected Ulysses’ plea, it is reasonable to read Ulysses’ request as a social expectation of hospitality to distressed mariners. Writing on ancient law, Maine says that the Homeric poems should be ‘considered of course not as a history of actual occurrences, but as a description, not wholly idealised, of a state of society known to the writer’.14 Even with this generous reading, however, there is not sufﬁcient evidence in support of a custom on refuge widely accepted at the time. Somewhat more historical (rather than literary) evidence that ships in distress were accorded special treatment appears in the context of the Punic Wars. The Romans and Carthaginians fought three wars (264–241, 218–201, 149–146 BC), at the end of which Rome emerged as the dominant Mediterranean power. Before that ﬁnal triumph, however, the two peoples had entered into pertinent treaties that are recounted by Polybius. Polybius was a Greek historian who accompanied Scipio in the third Punic war and witnessed the destruction of Carthage. Polybius writes that the ﬁrst treaty between the Romans and Carthaginians included the following: There is to be friendship between the Romans and their allies and the Carthaginians and their allies on these terms: The Romans and their allies not to sail with long ships beyond the Fair Promontory unless forced by storm or by enemies: it is forbidden to anyone carried beyond it by force to buy or carry away anything beyond what is required for the repair of his ship or for sacriﬁce, and he must depart within ﬁve days.15

The Fair Promontory refers to northern Tunisia and at the time the Carthaginians forbid Roman long ships from sailing south of that point. However, Romans who simply wanted to trade with the Carthaginians were permitted to do so.16 The treaty is clear in the exception it makes with reference to stress of weather or pursuit by enemies; it is also clear that in beneﬁting from

13

Homer, The Odyssey, Book 9, translated by Samuel Butler (1900), , 11 July 2005. 14 Henry Maine, Ancient Law (London, Murray, 1861), Chapter 1, at 1–2. 15 Polybius, The Histories, Book III, Chap. 22 (Loeb Classical Library, 1922, 1927). Commented upon by Hugo Grotius, The Rights of War and Peace including the Law of Nature and of Nations (1625), Translated by A.C. Campbell, A.M. with an Introduction by David J. Hill, Assistant Secretary of State of the United States (New York and London, M. Walter Dunne, 1901), Chap. 3, para. VI. Also in: J. Dumont, Corps Universel Diplomatique du Droit des Gens (1774), vol. I, Part I, xxxvii. 16 Polybius, ibid., Chap. 23.

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this exception, such ships could only legitimately obtain what was necessary to repair the ship and depart within ﬁve days.17 That the Romans and Carthaginians recognised the special situation of ships in distress was further recognised in a later treaty between the two. Again, Polybius recounts the pertinent provision as follows: No Roman shall trade or found a city in Sardinia and Libya nor remain in a Sardinian or Libyan post longer than is required for taking in provisions or repairing his ship. If he be driven there by stress of weather, he shall depart within and at Carthage he may do and sell anything that is permitted to a citizen. A Carthaginian in Rome may do likewise.18

It is possible that more in-depth research might reveal other early examples. There is anecdotal evidence that might be read in support of a practice of hospitality towards distressed seafarers, but it is not clear whether this related to a ship speciﬁcally seeking refuge, as distinct from one that was shipwrecked. In general, the Romans were fully aware of the danger posed by bad weather for navigation and found a way to minimise losses by imposing a general ban on winter shipping.19 St. Luke recounts how the ship on which St. Paul was being transported to Rome encountered ﬁerce weather and shipwrecked on the coast of Malta around 60 AD.20 He noted that the islanders received them with extraordinary hospitality and with the chief of the island cordially receiving them as his guests for three days. They were also provided with supplies before they set sail again on another ship. However, the paucity of examples recounted by early writers is insufﬁcient to conclude that practices at the time (including the more concrete treaty practices) were evidence of a custom. The RomanCarthaginian agreements may simply have been unusual and ad hoc bilateral arrangements.

Maritime Codes Beyond historical and literary accounts preceding and during the Roman period and well into the Byzantine period and Middle Ages, there were numerous efforts at codifying maritime trade practices, several of which survived. It does not appear that there were any provisions concerning assistance to ships and crews in the earliest of these, the Code of Hammurabi,21 from around 1780 BC,

17

Further explained by Polybius, ibid., Chap. 23. Polybius, ibid., Chap. 24. 19 In order to navigate in the winter months, a ship had to have an ofﬁcial permit (dimissorium). R. Rodiere, Traité général de droit maritime (Paris, Dalloz, 1976), Tome I, 376. 20 Acts of the Apostles, St. Luke, Chaps. 27–28. 21 Hammurabi’s Code of Laws (circa 1780 BC), <www.admiraltylawguide.com/documents/hammurabi.html>, 30 January 2005. 18

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and the Laws of Manu (1500 BC–200 AD).22 It is known that the Phoenicians developed their own maritime laws and that these were followed by the Greeks, but no original text from that time seems to have survived, except in a subsequent iteration. It is conceivable that the Maritime Law of Rhodes, which drew on Phoenician practices, may have provided for ports of refuge since it probably set out one of the earliest formulations of the law of general average (see Chapter 13). This law was subsequently incorporated into Roman law and was practised for several hundred years. Justinian’s Digest (529–565 AD) refers to it as the Rhodian Law of Jettison (Lex Rhodia de Jactu) and it was held applicable to shipwrecks.23 The Rhodian principles were followed by other major Byzantine codiﬁcations, becoming known as the Rhodian Sea Law, such as in the Ecloga of Emperor Leo III (717–741 AD) and Book 53 of the Basilica of Emperor Basil I (867–886 AD). However, it is not clear that what is left of these codiﬁcations actually referred to a practice concerning places of refuge for ships in distress. The trading reality at the time and at least until the 12th century is well captured by Jados: On the seas the merchants were exposed to pirates and privateers, to shipwreck and death. Meager knowledge of navigation, lack of proper navigational instruments, the nonexistence of lighthouses and beacon lights, dependence upon favorable winds, and the inability of vessels to withstand severe storms often ended in aimless sailing until the depletion of water and food resulted in the death of all aboard. If shipwrecked on foreign shores, custom permitted the local inhabitants to keep all salvaged cargo including the vessel. If driven by storms toward an unfriendly or enemy territory, they were often enslaved or put to death, if it was inconvenient to collect ransom for their release. The development of a convoy system provided some degree of safety but increased the cost of transportation of merchandise, due to the necessity of hiring armed naval units.24

Ashburner further highlights the dangers and difﬁculties of navigation, in particular dangers from ignorance and want of discipline, winter navigation

22

Laws of Manu (Manusmriti) (1500 BC–200 AD), <www.admiraltylawguide.com/ documents/manu.html>, 30 January 2005. 23 Justinian’s Digest (The Digest or Pandects), Book XIV (Title I–II), Title II Concerning the Rhodian Law of Jettison (9. Volusius Mæcianus, On the Rhodian Law): ‘A petition of Eudaimon of Nicomedia to the Emperor Antoninus; “Lord Emperor Antoninus, having been shipwrecked in Icaria we have been robbed by farmers of the revenue inhabiting the Cyclades Islands.” Antoninus answered Eudaimon as follows: “I am, indeed, the Lord of the World, but the Law is the Lord of the sea; and this affair must be decided by the Rhodian law adopted with reference to maritime questions, provided no enactment of ours is opposed to it.” The Divine Augustus established the same rule’. 24 S. S. Jados, Consulate of the Sea and Related Documents (University of Alabama, 1975), Preface, , 30 January 2005, vii.

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restrictions, piracy, ﬁre and victuals.25 The lack of safety and security in trading and the cost of protecting shipping probably encouraged trading powers and their merchants to increasingly place more faith in the development of the law in building wealth.26 There is a hint of this in later codes that continued the relaying of maritime customs, while at the same time attempting to codify and further develop them, and one of these was the Maritime Ordinances of Trani of 1063, then an important Adriatic port. According to the original text, ‘These underwritten ordinances and reasons were made, ordained, and provided, and further deliberated by the noble and discreet Sir Angelo de Bramo, Sir Simon de Brado, and Commander Nicolas de Roggiero, of the city of Trani, Consuls elect of the Guild of Navigators, as the most competent who could be found in this Adriatic Gulf’, section VIII of which provided: The abovesaid consuls propound, say, and deﬁne, that if a master of a ship goes into prohibited places, and further goes into a port where he ought not go, excepting it be in case of bad weather, customs dues and all other losses which may accrue in such a course, and in other prohibited places, the master is bound to defray, if the mariners of the said ship have forbidden the said master to do it and the master will not heed them, and in case that the mariners and also the master did not know the fact, all the loss which shall accrue shall be brought into average.27

The master was not to enter a prohibited port except in bad weather, and in which case he did not personally incur the cost of any charges, which instead would be subject to general average. This provision is not stating a refuge custom; rather, what is relevant here is that bad weather that forced an unscheduled entry into a port constituted an exception to the normal rule. Other practices were in line with this approach.28 At the time, not all ports were open for commerce, and it was only those so opened by treaty that enabled normal entry. The Navigation Code (1150) of the Port of Arles went further, at least insofar as subjects of Arles were concerned, in imposing a duty to assist on ﬁsherfolk: C.105. Concerning ﬁshermen near the river Also we decree that any ﬁsherman who lives near the river for the sake of ﬁshing shall be expected to swear once a year in the court at Arles, that he will help any vessel belonging to a man of Arles which shall go out or come in to the river if it be

25

W. Ashburner, The Rhodian Sea Law (Oxford, Clarendon Press, 1909), cxli–clii. See Jados, supra note 24, at viii et seq. See also E. Gold, Maritime Transport: The Evolution f International Marine Policy and Shipping Law (Lexington Mass., Lexington Books, 1981), Chaps. 1 and 2. 27 Maritime Ordinances of Trani (1063 AD), <www.admiraltylawguide.com/documents/trani.html>, 30 January 2005. Asburner states that there is controversy over the date of 1063, and that the Ordinances may possibly be of the 14th century. Supra note 25, at cxx. 28 Jados, supra note 24. 26

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exposed to danger. And if it should happen that the vessel or vessels suffer wreck, which God forbid, he shall likewise be expected to save the vessel and its cargo, and for every pound they save they shall have twelve denarii and they shall take only two solidi for their labor from foreigners.29

The stipulation of a duty to assist not only the crew, but also the ship and cargo, in return for a fee (as a kind of salvage award) would be reiterated in subsequent instruments. The inﬂuential Barcelona Maritime Code of 1258, enacted by James I of Aragon, likewise contained a provision for assistance to be given in storms to ships in distress.30 The very same principle would be developed further by what was probably the most inﬂuential maritime codiﬁcation of the Middle Ages, the Rules of Oleron (also known as Rolls of Oleron) of 1266. In article XXIX, the Rules provided: If any ship or other vessel sailing to and fro, and coasting the seas, as well in the way of merchandizing, as upon the ﬁshing account, happen by some misfortune through the violence of the weather to strike herself against the rocks, whereby she becomes so bruised and broken, that there she perishes, upon what coasts, country or dominion soever; and the master, mariners, merchant or merchants, or any one of these escape and come safe to land; in this case the lord of that place or country, where such misfortune shall happen, ought not to let, hinder, or oppose such as have so escaped, or such to whom the said ship or vessel, and her lading belong, in using their utmost endeavors for the preservation of as much thereof as may possibly be saved. But on the contrary, the lord of that place or country, by his own interest, and by those under his power and jurisdiction, ought to be aiding and assisting to the said distressed merchants or mariners, in saving their shipwrecked goods, and that without the least embezzlement, or taking any part thereof from the right owners; but, however, there may be a remuneration or consideration for salvage to such as take pains therein, according to right reason, a good conscience, and as justice shall appoint; notwithstanding what promises may in that case have been made to the salvors by such distressed merchants and mariners, as is declared in the fourth article of these laws; and in case any shall act contrary hereunto, or take any part of the said goods from the said poor, distressed, ruined, undone, shipwrecked persons, against their wills, and without their consent, they shall be declared to be excommunicated by the church, and ought to receive the punishment of thieves; except speedy restitution be made by them: nor is there any custom or statute whatsoever, that can protect them against the aforesaid penalties, as is said in the 26th article of these laws.31

29

Port of Arles: The Navigation Code (1150), <www.admiraltylawguide.com/documents/arles.html>, 30 January 2005. 30 The Barcelona Maritime Code of 1258, <www.fordham.edu/halsall/source/ 1258barcelona4.html>, 23 May 2005. 31 Rules of Oleron (circa 1266), <www.admiraltylawguide.com/documents/ oleron.html>, 30 January 2005.

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This provision is interesting for several reasons. It refers to any ship and contains a speciﬁc reference to ﬁshing vessels, which at that time was unusual. Also signiﬁcant is the duty imposed on local authority to assist distressed seamen and property, perhaps in response to the security situation faced by distressed merchants and seafarers at the time described above by Jados. There was similar provision in the Laws of Wisby, which were modelled on the Rules of Oleron.32 Unlike the Rules of Oleron, the inﬂuential Consolato del Mare of Barcelona did not address the respective duties of the local authorities when confronted with a ship in distress. The Consolato focused on the commercial dimensions and thus on the port of refuge in a general average context. Entrance to a port required the express permission of the merchants on board the ship and the master had to show that the vessel needed to enter port in order to be able to continue the maritime adventure, possibly because of needed repairs, maintenance or equipping.33 But this was not all: there had to be knowledge of the port concerned on board the ship. And in any case, if there happened to be a privateer in the port, the merchants could always object to making port. Consuls and Judges of Appeal heard all maritime cases, including salvage at sea and shipwreck.34 In the case of the Laws of the Hanse Towns (1597), there were few provisions relating to the situation of a ship distress, and these related to the selling of provisions and the crew in case of forced wintering or unscheduled stays.35 Despite the principle advanced by the Rules of Oleron concerning assistance by local authorities and their wide acceptance among the maritime powers of the day, it appears that if a sovereign wanted to be assured that his/her ships would be given assistance when in distress, agreements with other sovereigns had to be entered into. Thus Motley relates how, in preparation for the launching of the Spanish Armada against England, King Philip requested the King of France ‘in case any Spanish ship should be driven by stress of weather into French ports, to afford them that comfort and protection to which the vessels of so close and friendly an ally were entitled’.36

32

Gold, supra note 26, at 28. Art. 101, Arrival in Port, Consolato del Mare, Jados, supra note 24. 34 Ibid., Art. 22. 35 The Laws of the Hanse Towns (circa 1597), <www.admiraltylawguide.com/documents/hanse.html>, 30 January 2005. Art. IX: ‘All masters are forbidden to sell any of the ship’s provisions, on pain of being punished as thieves, except it is at sea, when they meet with other ships in distress and danger of perishing for want of them; for which they shall however be accountable to the owners’. Art. XX.: ‘A ship being forced to stay or winter in a strange country, the mariners are not to go out of her without the master’s permission, on pain of losing half their wages’. 36 J. Lothrop Motley, History of the United Netherlands (1588), Chap. 19, e-book online, <www.gutenberg.org/etext/4860>, 30 January 2005. 33

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Assessment of the Practice During this Period Much of the practice on the basis of which deductions can be made on the existence or otherwise of a refuge custom consists of maritime codes. These codes embodied the customary practices recognised by merchants, trading powers, cities and ports. Clearly, general average was one such well-established institution by virtue of which sacriﬁces or expenditures incurred in a port of refuge would be equitably shared among those interests that beneﬁted from the completion of the maritime adventure, if it was indeed completed at the port of ﬁnal destination.37 In the case of the Rules of Oleron, distressed merchants, seafarers and their property were entitled to protection, subject to salvage.38 On the basis of the widespread acceptance of general average and occasional provisions such as those in the Rules of Oleron that applied in many trading regions, one could infer that a ship calling at a port of refuge enjoyed a certain protection. However, this may not be more than an inference, which may be contradicted by Jados’ assessment. There does not appear to be much other corroborating recorded practice which was sufﬁciently widespread, or authoritative opinion at the time to conﬁrm that as a consequence of the general average act and entrance to a port of refuge, there was a widely-accepted right to refuge and that, crucially, this entailed a counterpart duty on local authorities to receive and treat the ship and its crew humanely.

17th to 19th Centuries Bilateral Practice The Peace of Westphalia of 1648 brought to an end the Thirty Years War in Europe and provided a framework for diplomacy and peace-building.39 For the purpose of this study, the Peace is interesting because in its attempt to secure a lasting settlement the agreements encompassed by the Peace attempted to remove barriers to port access, commerce and navigation, while re-establishing old customs and practices.40 Although not providing direct evidence for the

37

For more on this see Ashburner, supra note 25, at ccli–cclxxxv. Ashburner comments further on salvage. Ibid., at cclxxxviii–ccxciii. 39 The treaties constituting the Peace of Westphalia 1648 are available in multiple languages at Acta Pacis Westphalicae, <www.pax-westphalica.de/ipmipo/indexen. html>, 30 January 2005. 40 See for instance the Holy Roman Emperor’s treaty with Sweden, Instrumentum Pacis Osnabrugensis, Osnabruck, 24 October 1648, <www.pax-westphalica.de/ipmipo/ indexen.html>, 30 January 2005, Arts. IX(1) and (2), and the Emperor’s treaty with France, Instrumentum Pacis Monasteriensis, Muenster, 24 October 1648, ibid., Arts. 67 and 68. The latter provisions stipulated as follows: 38

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refuge custom, the multilateral diplomacy spun off a series of bilateral agreements concerning peace, friendship and co-operation between European powers that did evidence the custom. Europe was exhausted by war and trade had suffered. It was therefore natural and a matter of necessity for European powers to resurrect their trading relationships. Also, some of the earliest agreements that followed were between maritime powers (declining or ascendant!) who were keen on normalising relations and providing a viable framework for freedom of navigation and maritime trade. A system of such agreements thus emerged, generally containing recognition of the freedom of navigation, mostfavoured nation clauses (MFNs), reciprocal port access, consular representations and a regime for ships in distress. By the 17th century, refuge for warships in distress began to be recognised in bilateral treaties. One of the ﬁrst of such agreements was signed several months before the main Peace of Westphalia agreements, the 1648 Treaty of Peace between Spain and the United Provinces of the Low Countries ended the Eighty Years War. 41 While the agreement forbid the entry into ports, harbours, shallows or roads of warships and soldiers in suspicious numbers without permission, it made an exception where ‘they are forced in by storm, or obliged thereto through necessity, or to avoid the dangers of the sea’.

Art. 67: ‘And since it much concerns the Publick, that upon the Conclusion of the Peace, Commerce be re-establish’d, for that end it has been agreed, that the Tolls, Customs, as also the Abuses of the Bull of Brabant, and the Reprisals and Arrests, which proceeded from thence, together with foreign Certiﬁcations, Exactions, Detensions; Item, The immoderate Expences and Charges of Posts, and other Obstacles to Commerce and Navigation introduc’d to its Prejudice, contrary to the Publick Benﬁt here and there, in the Empire on occasion of the War, and of late by a private Authority against its Rights and Privileges, without the Emperor’s and Princes of the Empire’s consent, shall be fully remov’d; and the antient Security, Jurisdiction and Custom, such as have been long before these Wars in use, shall be re-establish’d and inviolably maintain’d in the Provinces, Ports and Rivers’. Art. 68: ‘The Rights and Privileges of Territorys, water’d by Rivers or otherways, as Customs granted by the Emperor, with the Consent of the Electors, and among others, to the Count of Oldenburg on the Vis[u]rg, and introduc’d by a long Usage, shall remain in their Vigour and Execution. There shall be a full Liberty of Commerce, a secure Passage by Sea and Land: and after this manner all and every one of the Vassals, Subjects, Inhabitants and Servants of the Allys, on the one side and the other, shall have full power to go and come, to trade and return back by virtue of this present Article, after the same manner as was allow’d before the Troubles of Germany; the Magistrates, on the one side and on the other, shall be oblig’d to protect and defend them against all sorts of Oppressions, equally with their own Subjects, without prejudice to the other Articles of this Convention, and the particular Laws and Rights of each place’. 41 Treaty of Peace between Spain and the United Provinces of the Low Countries, Münster, 30 January 1648, Hertslet vol. II (1840), 157, Art. XXIII.

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A more comprehensive provision appears a few years later in 1654, in an agreement between Great Britain and Sweden.42 In this agreement, refuge was permitted to both warships and commercial vessels belonging to either party or their nationals. The nature of the perils faced was more speciﬁc, namely ‘tempests, pursuit of pirates and enemies, or any other urgent necessity’. The potential places foreseen were ‘havens, roads, or shores’. There was a reciprocal commitment to receive the distressed ship ‘with all kindness and humanity’ and provision of ‘all friendly protection’. This is interesting because the notion of a place of refuge also entailed protection from the receiving state. While no time limit was imposed, distressed ships were permitted to repair and re-supply at reasonable prices. They were thus protected from commercial exploitation because of their sorry state. They were also permitted to depart without paying any customs or duties. The only general condition imposed upon the ship was to desist from violating local laws and customs. When a warship was compelled to enter the other party’s ports there was a requirement to inform the governor or chief magistrate of the place who could state the amount of time permitted in port. In a subsequent treaty in 1656, the two states further agreed to additional terms governing warships navigating in coastal waters and into harbours to avoid tempests and enemies.43 The two parties renewed the 1654 agreement in 1661, and again in 1812 through the Treaty of Örebro.44 A 1660–1661 agreement between Great Britain and Denmark, while re-stating that British subjects could not enter restricted ports speciﬁed in earlier treaties with prior permission, made an exception in situations where they were constrained to do so because of ‘evident danger of the sea, or violence of storms’.45 This was reiterated in a follow-up agreement between the two states in 1670, which also included a more extensive provision concerning assistance in case of shipwreck. Not only was there a reciprocal duty to protect property, but also for the subjects and coastal inhabitants to provide whatever assistance is possible, who in turn would be entitled to salvage and compensation.46 In relation to warships, the bilateral rule was that up to six could enter a party’s port in normal circumstances, but ‘if by force of tempest or other urgent

42 Treaty between Great Britain and Sweden, Uppsala, 11 April (9 May) 1654, Hertslet vol. II (1840), 310, Arts. VI and IX. 43 Treaty between Great Britain and Sweden, Westminster, 17 July 1656, Hertslet vol. II (1840), 317, Art. III(7). 44 Treaty between Great Britain and Sweden, Whitehall, 21 October 1661, Hertslet vol. II (1840), 324, Arts. VI and IX. Hertslet notes that the renewal took place by virtue of Art. II of the Treaty of Örebro, 1812. Ibid., 324. 45 Treaty between Great Britain and Denmark, Whitehall, 13 February 1660–1, Hertslet vol. I (1840), 179, Art. VII. 46 Treaty between Great Britain and Denmark, Copenhagen, 11 July 1670, Hertslet col. I (1840), 186, Art. XXV.

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necessity, they shall be compelled to put into harbour, in such case, without any precedent notice, the ships shall not be restrained to a certain number’.47 If the latter occurred, there was still a duty to notify the local authorities upon arrival, who would permit a stay for a speciﬁed period of time.48 There was similar earlier agreement in 1654 between Great Britain and Portugal.49 This post-Westphalia bilateral treaty pattern continued with Great Britain and Spain in 1667. In their treaty of peace and friendship, the two states attempted to liberalise trade and provided for freedom of navigation, including access to each other’s ports and havens as follows: . . . and in case they be necessitated to enter thereinto, either by distress of weather, fear of enemies, pirates, or any other accident, in case the said ships be not bound to an enemy’s port, and carrying thither contraband goods (whereof without some clear proof, they shall not be questioned) it shall be lawful for the said subjects to return to sea freely when they please with their ships and goods, so as they do not break bulk, or expose anything to sale; and that when they cast anchor, or enter the ports aforesaid, they be not molested or visited; and it shall sufﬁce, that in this case they show their passports, or sea-papers, which being seen by the respective ofﬁcers of either King, the said ships shall return freely to sea without molestation.50

The stipulations were consistent with those of the other agreements. And like the other agreements they also provided for warships, which normally could enter each other’s ports in groups of eight, safe ‘by stress of weather, or other necessity, to avoid the danger of the sea’, and in which case they had to similarly notify local authorities who would stipulate a period of time for the stay.51 A discernible difference in state practice would appear in the last quarter of the 18th century. Between 1778–1795 the United States (US) entered into several treaties of peace, commerce and navigation, three of which concerned major powers and contained consistent provisions on refuge. The ﬁrst of these was a treaty of friendship and co-operation with France in 1778, which provided: In Case the Subjects and Inhabitants of either Party with their shipping whether public and of War or private and of Merchants, be forced, through Stress of Weather, pursuit of Pirates or Enemies, or any other urgent necessity for seeking of Shelter and Harbour, to retreat and enter into any of the Rivers, Bays, Roads or

47

Ibid., Art. XXX. Ibid. 49 Treaty between Great Britain and Portugal, Westminster, 10 July 1654, Hertslet vol. II (1840), 8, Art. XVIII. 50 Treaty of Peace and Friendship between Great Britain and Spain, Madrid, 13/23 May 1667, Hertslet vol. II (1840), 140, Art. XIII. 51 Ibid., Art. XVI. 48

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Ports belonging to the other Party, they shall be received and treated with all humanity and Kindness and enjoy all friendly Protection & Help; and they shall be permitted to refresh and provide themselves at reasonable Rates with victuals and all things needful for the sustenance of their Persons or reparation of their Ships and conveniency of their Voyage; and they shall no Ways be detained or hindered from returning out of the said Ports or Roads but may remove and depart when and whither they please without any let or hindrance.52

The second agreement in discussion was the Jay Treaty, 1794. Following the Treaty of Paris, 1783, which ended the American War of Independence, relations between Great Britain and the United States deteriorated to the extent of further undermining each other’s commercial and navigation interests. The Jay Treaty adopted a new framework for commerce and navigation between the two countries.53 The agreement clariﬁed the issue of access, or otherwise, to each party’s ports and internal waters and provided a framework for ships in distress, very similar to the one in the agreement with France above: And His Majesty consents that in case an American vessel should, by stress of weather, danger from enemies, or other misfortune, be reduced to the necessity of seeking shelter in any of His Majesty’s ports, into which such vessel could not in ordinary cases claim to be admitted, she shall, on manifesting that necessity to the satisfaction of the Government of the place, be hospitably received, and be permitted to reﬁt and to purchase at the market price such necessaries as she may stand in need of, conformably to such orders and regulations at the Government of the place, having respect to the circumstances of each case, shall prescribe. She shall not be allowed to break bulk or unload her cargo, unless the same should be bona ﬁde necessary to her being reﬁtted. Nor shall be permitted to sell any part of her cargo, unless so much only as may be necessary to defray her expenses, and then not without the express permission of the Government of the place. Nor shall she be obliged to pay any duties whatever, except only on such articles as she may be permitted to sell for the purpose aforesaid.54

An unaddressed issue in the Jay Treaty was shelter for American ﬁshing vessels in adjacent British North American waters (Canada), and this would be addressed in a later agreement in 1818.55 The third agreement was the US-

52

Treaty of Amity and Commerce between the United States and France, Paris, 6 February 1778, <www.yale.edu/lawweb/avalon/diplomacy/france/fr1788–1.htm>, 30 January 2005 (hereafter US France, 1778), Art. 21. Art. 20 also provided for assistance to shipwrecked seafarers. 53 Treaty of Amity, Commerce and Navigation between His Britannick Majesty and the United States of America, London, 19 November 1794 (hereafter Jay Treaty), Parry vol. 52 (1969), 243. 54 Ibid., Art. 23. 55 Convention between Great Britain and the United States, London, 20 October 1818, Hertslet vol. II, 392, Art. 1, which provided that ‘. . . American ﬁshermen shall be

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Spain Treaty of San Lorenzo, 1795, which contained similar protection for commerce, navigation, and ships in distress.56 This treaty added one more dimension, which appeared in the US-France agreement, but not in the Jay Treaty, namely that the ship in distress should not be hindered in its departure or movements.57 The rule applied even to warships and privateers that carried prize on board, albeit somewhat more restrictively.58 Bilateral agreements containing provisions on refuge and assistance to ships in distress were not limited to European and North American states and their waters. Already in the late 17th century and especially during the 18th century, more states provided refuge and protection to ships in distress. The agreements of Great Britain and the US with the Barbary states are a case in point. For instance, Great Britain entered into two agreements with Morocco in 1760 and

admitted to enter such bays or harbours, for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purposes whatsoever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing ﬁsh therein, or in any other manner whatever abusing the privileges hereby reserved to them’. 56 Treaty of Friendship, Limits, and Navigation, San Lorenzo el Real, 27 October 1795, in Miller vol. 2 (1931), 318. 57 Spain-US: ‘In case the Subjects and inhabitants of either Party with their shipping whether public and of war or private and of merchants be forced through stress of weather, pursuit of Pirates, or Enemis, or any other urgent necessity for seeking of shelter and harbor to retreat and enter into any of the Rivers, Bays, Roads, or Ports belonging to the other Party, they shall be received and treated with all humanity, and enjoy all favor, protection and help, and they shall be permitted to refresh and provide themselves at reasonable rates with victuals and all things needful for the sustenance of their persons or reparation of their Ships, and prosecution of their voyage; and they shall no ways be hindered from returning out of the said Ports, or Roads, but may remove and depart when and whither they please without any let or hindrance’. Ibid., Art. VIII. In 1839 the ‘Amistad’, a Spanish vessel was carrying a cargo of Africans who were kidnapped for slavery when they took over the ship and killed the master. A US warship apprehended the ship, and the slaves were freed. A US court had opportunity to consider the application of Article VIII, but the court doubted whether the circumstances of the case fell under the treaty and did not decide on the matter. United States v. The Libellants and Claimants of the Schooner Amistad (The Amistad), 40 U.S. 518 (1841). 58 Jay Treaty, supra note 53, Art. 25: ‘. . . No shelter or refuge shall be given in their ports to such as have made a prize upon the subjects or citizens of either of the said parties; but if forced by stress of weather, or the dangers of the sea, to enter therein, particular care shall be taken to hasten their departure, and to cause them to retire as soon as possible. Nothing in this-treaty contained shall, however, be construed or operate contrary to former and existing public treaties with other sovereigns or States. But the two parties agree that while they continue in amity neither of them will in future make any treaty that shall be inconsistent with this or the preceding article’. See also France-US, 1778, supra note 52, Art. 20.

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1791. The former stipulated a duty of protection and a right to depart in safety without ill-treatment or interruption.59 This included an exemption from payment for shelter or the assistance received.60 The latter agreement provided similar provisions, but speciﬁed for English ships hired by Moroccan subjects exemptions from anchorage and port charges ‘or any thing for the shelter they may receive’.61 As for all others, if a ship . . . may meet an accident at sea, and shall put in any port of the Emperor’s Dominions to repair, shall be received and treated with all manner of humanity and civility; have all the protection and assistance of friends; shall be at liberty to land and re-load her cargo, without paying any duty whatsoever; shall be allowed to buy provisions and other necessaries, for the support of their persons and future subsistence to their destined port, or for repairing their ships; and shall in no manner be retarded or hindered from proceeding on their voyage.62

A further agreement between Great Britain and Morocco in 1801 re-stated the same principles.63 In 1812, Great Britain also entered into agreements with Tunis and Tripoli in which privateers are provided with refuge.64 The US-Barbary treaties contained similar content to Great Britain’s agreements with Barbary states, albeit with briefer text.65 Frequently these

59 Treaty between Great Britain and Morocco, Fez, 28 July 1760, Hertslet vol. I (1840), 100, Art. II. 60 Ibid., Art. VIII. 61 Treaty between Great Britain and Morocco, Salé, 8 April 1791, Hertslet vol. I (1840), 112, Art. XXXIII. 62 Ibid., Art. XXXIV, 120. 63 Treaty between Great Britain and Morocco, Fez, 14 June 1801 (conﬁrmed in 1824), Hertslet vol. III (1841), 17, Arts. XXI, XXIV, XXXI and XXXII. 64 Treaty between Great Britain and Tunis, Bardo, 2 May 1812, Hertslet vol. I (1849), 173, Art. I; Treaty between Great Britain and Tripoli, 10 May 1812, Hertslet vol. I, 152 (hereafter UK-Tripoli, 1796), Arts. II and III. Although they were entitled to the usual privileges in the place of refuge, they were not permitted to increase the number of men, arms and ammunition. Also, they were not permitted to sail within 24 hours of departure of another belligerent vessel if the latter vessel remained ‘in sight of such port, bay, or roadstead, whether detained by calms, foul winds, or other unavoidable circumstances’. Ibid. 65 E.g., US-Morocco, Treaty of Peace and Friendship, 28 June 1786 (hereafter USMorocco, 1786), <www.yale.edu/lawweb/avalon/diplomacy/barbary/bar1786t.htm>, 30 January 2005, Art. 7. Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli of Barbary, Tripoli, 4 November 1796 (hereafter US-Tripoli, 1796), <www.yale.edu/lawweb/avalon/diplomacy/barbary/ bar1796t.htm>, accessed on 30 January 2005, Art. 6. A similar agreement was entered into with Tunis: Treaty of Peace and Friendship, Tunis, 28 August 1797, <www.yale. edu/lawweb/avalon/diplomacy/barbary/bar1797t.htm>, 30 January 2005, Arts. 8–10.

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agreements, like many others, provided for assistance in case of shipwreck66 and protection from coastal batteries in certain situations, such as: ‘If any Vessel of either of the Parties shall have an engagement with a Vessel belonging to any of the Christian Powers within gunshot of the Forts of the other, the Vessel so engaged shall be defended and protected as much as possible until she is in safety’.67 The Ottoman Empire also recognised refuge for ships in distress in its peace agreement with Great Britain in 1809. The Ottoman Empire committed, inter alia, to have English ships ‘assisted by all who happen to be present, whether the crews of our imperial ships, or others, both by sea and land’.68 An agreement between Great Britain and Russia addressed refuge in the Paciﬁc.69 In addition to the right to undertake repairs and re-supply, distressed ships were exempted from paying dues, other than port and lighthouse dues payable by national vessels.70 The master could sell part of the cargo, but subject to conformity with local regulations and tariffs.71 In the case of ﬁshing boats again, in 1826 France and Great Britain, while permitting refuge, did not permit such vessels to ‘discharge or receive on board any cargo, or portion of cargo, in the ports, or on the parts of the coast where they shall have sought shelter’.72 In

The agreements with the Barbary states were further renegotiated, but the refuge provisions were maintained, in 1836 with Morocco, 1805 with Tripoli, 1815–1816 with Algeria and 1824 with Tunis. The amended texts are available online, <www.yale.edu/lawweb/avalon/diplomacy/barbary/barmenu.htm>, 30 January 2005. 66 E.g., US-Algeria, Treaty of Peace and Amity, Algiers, 5 September 1795, <www.yale.edu/lawweb/avalon/diplomacy/barbary/bar1795t.htm>, 30 January 2005, Art. 6; US-Tripoli, 1796, supra note 64, Art. 7. 67 US-Morocco, supra, Art. 10. On 15 July 1786 this provision saw a further addition: ‘if any Vessel belonging to the United States shall be in any of the Ports of His Majesty’s Dominions, or within Gunshot of his Forts, she shall be protected as much as possible and no Vessel whatever belonging either to Moorish or Christian Powers with whom the United States may be at War, shall be permitted to follow or engage her, as we now deem the Citizens of America our good Friends’, <www.yale.edu/lawweb/avalon/ diplomacy/barbary/bar1786a.htm>, 30 January 2005. See also US-Tripoli, 1796, supra note 64, Art. 8. 68 Capitulations and Articles of Peace between Great Britain and the Ottoman Empire as agreed upon, augmented, and altered at different periods, and ﬁnally conﬁrmed by the Treaty of Peace concluded at Dardanelles (Treaty of Peace), Dardanelles, 1809, Hertslet vol. II (1840), 346, Arts. IV and V. 69 Convention between Great Britain and Russia, St. Petersburg, 16/28 February 1825, Hertslet vol. III (1841). 70 Ibid., Art. X. 71 Ibid. 72 Convention of Commerce and Navigation between Great Britain and France, London, 26 January 1826, Hertslet vol. III (1841), 123, Art. V.

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1848, France and Oldenburg adopted a Declaration on Port Dues in Case of Entry in Distress, providing exemptions for port and navigation dues so long as no commercial undertaking was performed, and they clariﬁed that repairs to a ship were not to be considered such an undertaking.73 Moving to Latin America in the mid-19th century, France74 and the US75 entered into agreements with Guatemala that provided refuge for ships in distress in the context of treaties of friendship, commerce and navigation, and consistently with the practices described earlier. Like some other agreements, the French agreement permitted the unloading of cargo and its transfer to another vessel to protect it from perishing. The Hanseatic Cities of Bremen, Hamburg and Lubeck entered into a similar agreement with Costa Rica, and this time they permitted the hiring of sailors in accordance with local law to enable continuation of the voyage.76 The latter provision was not very common. In the Gulf region, Article 10 of an 1891 agreement with Great Britain and Oman provided that British ships entering Omani ports in distress ‘shall receive from the local authorities all necessary aid to enable them to revictual and reﬁt so as to proceed on their voyage’.77 Finally, despite the conﬁrmation by the Declaration of Paris of 1856 that ‘privateering is and remains abolished’,78 the refuge custom was recognised as applying to privateers even during the American Civil War.79

73 Declaration between France and Oldenburg relative to Port Dues in Case of Entry in Distress, Oldenburg, 27 February 1848, Parry vol. 102 (1847–1849). 74 Treaty of Commerce and Navigation between France and Guatemala, Guatemala City, 8 March 1848, Parry vol. 102 (1847–1849), 169, Art. 12. 75 Treaty of Peace, Amity, Commerce and Navigation between Guatemala and the United States, Guatemala City, 3 March 1849, Parry vol. 102 (1847.1849), 481, Art. 8. This provision has a more modern drafting than earlier texts, but appears to concede less (e.g., no reference to customs exemptions): ‘Whenever the citizens of either of the contracting parties shall be forced to seek refuge or asylum in the rivers, bays, ports or dominions of the other with vessels, whether merchants or of war, public or private, through stress of weather pursuit of pirates or enemies they shall be received and treated with humanity, giving to them all favour and protection for repairing their ships, procuring provisions, and placing themselves in a situation to continue their voyage without obstacle or hindrance of any kind’. 76 Treaty of Amity, Commerce and Navigation between Costa Rica and the Hanseatic Cities of Bremen, Hamburg and Lubeck, Guatemala City, 10 March 1848, Parry vol. 102 (1847–1849), 197, Art. XIV. 77 Treaty of Friendship, Commerce and Navigation between the United Kingdom of Great Britain and Ireland and Muscat [Oman], Muscat, 19 March 1891, ATS 1901 No. 81, Arts. 2 and 4. 78 Adopted in Paris, 16 April 1856, <www.yale.edu/lawweb/avalon/lawofwar/decparis.htm>, 30 January 2005. 79 Diplomatic correspondence between the US Department of State and legations

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Nineteenth century state practice on the refuge custom suffered some inconsistencies and interruptions. Despite violations, the practice continued among other states. It appears that many violations resulted in retaliation or protest. Most probably, there were violations of the customary norm during the Napoleonic wars, as a result of the British blockades of numerous ports and Napoleon’s retaliatory Berlin Decree of 1806.80 As there were violations also in times of peace, complaints led to international claims that were settled diplomatically or through international arbitration. The US and the UK, like other states, not only recognised the special status and exemptions of ships in distress when in a place of refuge, but also expected similar treatment for their ships in foreign ports, and sought redress when this was not forthcoming and losses were incurred by nationals. The seizure of the US ﬁshing vessel ‘Marion Grimes’, which was forced into Shelburne in Nova Scotia, led to an exchange between the US and Great Britain to attempt to clarify the entitlements of ships in distress. There was no question that the two sides were in agreement on the custom. In a communication in 1886 by the US Secretary of State commenting on the case of the ‘Rebecca’, he stated that ‘the right to navigate the ocean and seek shelter in case of distress’ was characterised as ‘a right sanctioned by the law of nations’ and that ‘no independent nation would submit to their violation’.81 The seizure in question was described as a ‘violation of the law of nations as well as the law of humanity’.82 Towards the dying days of slavery, there were a number of US vessels carrying slaves that sought refuge in British colonial ports or that were taken over

overseas continued to recognise the refuge custom for privateers. See the exchanges between the US Legation in Brussels and the Department of State in 1861, <www.wisc.edu/wendt/frus/053s.html>, 30 January 2005. See also the correspondence in 1861 between the US Legation in the Hawaiian Islands and the Department of State. There is reference to a Proclamation of Kamehameha IV, King of the Hawaiian Islands, that included: ‘Be it further known that the rights of asylum are not extended to the privateers or their prizes of either of the contending parties, excepting only in cases of distress or of compulsory delay by stress of weather or dangers of the sea, or in such cases as may be regulated by treaty stipulation’, <www.wisc.edu/wendt/frus/433.pdf>, 30 January 2005. 80 The various British blockade documents and instructions to the navy and its privateers are available online: <www.napoleon-series.org/research/government/british/ decrees/c_britdecrees1.html>, 30 January 2005. The Berlin Decree of 21 November 1806 provided, inter alia, that ‘No vessel coming directly from England or from the English colonies or which shall have visited these since the publication of the present decree shall be received in any port’. The Decree is available online: <www.napoleonseries.org/research/government/diplomatic/c_continental.html>, 30 January 2005. 81 John Bassett Moore, A Digest of International Law vol. II (Washington, Government Printing Ofﬁce, 1906) (hereafter Moore, Digest), 343–345. 82 Ibid., 345.

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and sailed into such ports. These were interesting situations because although slavery had been outlawed in Great Britain in 1834, it was still legal in a number of US states and was not totally abolished before 1 January 1863. Slaves were treated as ‘cargo’ and the question was whether the state granting refuge was obliged to protect the ship and its ‘cargo’. The British practice was unambiguously to allow refuge and to free the slaves at the same time. The American claims arising in the cases of the ‘Comet’ in 1831 and ‘Encomium’ in 1833 were considered in a mixed commission and resulted in Britain paying indemnity to the US.83 The cases that arose after Britain abolished slavery were more complex and were submitted to arbitration. Various issues were involved, including whether the ships in distress were entitled to absolute protection, the degree of exclusivity of jurisdiction of the ﬂag state over its own ships in a foreign port, and the extent to which such ships must abide by the local law. In 1855, the three arbitral awards on the ‘Enterprise’, ‘Hermosa’ and ‘Creole’ recognised that although slavery was abolished in Britain, it still was in existence in other countries and therefore could not be against international law at that time. The conduct of the local authorities in the respective ports was considered against international law and ‘laws of hospitality’ for ships in distress and therefore Britain was obliged to pay compensation in all three cases.84 Inappropriate treatment of US ships in distress overseas occurred in several other states, and examples given by Moore included Cuba, Mexico, Philippines (Manila), Spain and Venezuela, apparently in cases of deviation from planned voyages, and these were queried or protested.85 Deviation placed ships in potential violation of local customs laws and this resulted in heavy ﬁnes or conﬁscation. A distress case in Manila led to an international arbitration that was decided in favour of the US.86 In 1894, a ﬁne imposed on a US ship in a Haitian port was returned after a formal US request for its return.87

Practice of National Courts O’Connell wrote that US and English courts were aware of the bilateral treaty practice that established the refuge custom.88 Thus the conditions for the exer83

Ibid., 350–352. Ibid., 355–362. 85 Ibid., 346–348. 86 Ibid., 348. For the arbitral report see John Bassett Moore, A History and Digest of International Arbitrations in which the United States has been a Party vol. II (Washington, US Government Printing Ofﬁce, 1898) (hereafter Moore, Arbitrations), 1055–1069. 87 Moore, Digest, supra note 81, at 349. 88 D. P. O’Connell, The International Law of the Sea Vol. 2, I. A. Shearer ed. (Oxford, Clarendon Press, 1984), 853–854. O’Connell, at 856, and Jessup, infra note 259 at 206–207, also discuss French cases. 84

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cise of the right to refuge were set out early in some national courts, in particular by the US Supreme Court, that were periodically called upon to apply provisions on refuge in bilateral treaties, or consider customs exemptions, or apply statutory restrictions concerning trade with certain states. In Schooner Exchange v. McFaddon, the US Supreme Court was very conscious of the obligation in bilateral treaties to provide refuge for publicly and privatelyowned ships in distress: In almost every instance, the treaties between civilized nations contain a stipulation to this effect in favour of vessels driven in by stress of weather or other urgent necessity. In such cases the sovereign is bound by compact to authorize foreign vessels to enter his ports. The treaty binds him to allow vessels in distress to ﬁnd refuge and asylum in his ports, and this is a license which he is not at liberty to retract. It would be difﬁcult to assign a reason for withholding from a license thus granted, any immunity from local jurisdiction which would be implied in a special license.89

In the absence of a treaty and when ports are left open to public ships, there is a presumption of implied consent and there is then no reason for distinguishing this from express consent.90 In any case, the stipulation of distress entries in a treaty does not imply that a warship, which enjoys sovereign immunity, submits to territorial jurisdiction.91 In common law jurisdictions admiralty courts proceeded to develop and reﬁne the test of necessity. They considered the statutory consequences ﬂowing from the situation of necessity, and in particular exemptions from jurisdiction or charges, and in case of violations leading to loss, they sanctioned compensation for the injury suffered. Sir William Scott (Lord Stowell) set out the test in the Eleanor in 1809: Now it must be an urgent distress; it must be something of a grave necessity; such as is spoken of in our books, when a ship is said to be driven in by stress of weather. It is not sufﬁcient to say it was done to avoid a little bad weather, or in consequence of foul winds, the danger must be such as to cause apprehension in the mind of an honest and ﬁrm man. I do not mean to say that there must be an actual physical necessity existing at the moment; a moral necessity would justify the act, where, for instance, the ship had sustained previous damage, so as to render it dangerous to the lives of the persons on board to prosecute the voyage. Such a case, though there be no existing storm, would be viewed with tenderness; but there must be at least a moral necessity. Then again, it must not be a distress which he has created himself, by putting on board an insufﬁcient quantity of water or of provisions for such a voyage, for there the distress is only a part of the mechanism

89 90 91

Schooner Exchange (The) v. McFaddon, 11 U.S. 115, 7 Cranch 116 (1812), at 141. Ibid. Ibid., at 143.

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of the fraud and cannot be set up in excuse for it; and in the next place the distress must be proved by the claimant in a clear and satisfactory manner. It is evidence which comes from himself, and from persons subject to his power, and probably involved in the fraud, if any fraud there be, and is, therefore, liable to be rigidly examined.92

The test had real and irresistible distress as a central requirement with the burden of proof being laid squarely on the ship or person claiming distress. In the Concord, Story J. considered the exemption of a ship in distress from US customs dues.93 The exemption applies if ‘the goods are brought by superior force, or by inevitable necessity’, because they are considered to have been ‘imported’. However, if they are eventually sold or consumed in the US they are retroactively subject to customs duties. The US Supreme Court was called upon to consider the defence of distress in a number of cases in the context of the so-called non-intercourse legislation restricting trade with certain countries, which stipulated forfeiture of vessel and cargo for violations. It is interesting to note that, for the purpose of state practice in support of the refuge custom, these statutes allowed an exception in the case of ships in distress calling into an unscheduled port covered by the legislation.94 In Hallet v. Jenks, an insurance case, the court considered a scenario whereby a ship in distress in a French port was not permitted to re-load the cargo after repairs and instead was forced to load local produce.95 The entrance into the port was not voluntary and the loading of local produce did not constitute a violation of the legislation. The US was not at war with France at the time, but in summing up Chief Justice Marshall stated that even if a state of war had existed ‘it would not have been deemed such a trafﬁc with the enemy as would have vitiate the policy upon such cargo’.96 The New York considered a scenario where it was alleged that the seizure of a cargo from a ship in distress constituted a violation of a non-intercourse law aimed at Great Britain.97 Echoing the Eleanor, Livingston J. stated that The necessity must be urgent, and proceed from such a state of things as may be supposed to produce on the mind of a skilful mariner, a well-grounded apprehension of the loss of vessel and cargo, or of the lives of the crew. It is not every injury that may be received in a storm, as the splitting of a sail, the springing of a yard, or a triﬂing leak, which will excuse the violation of the laws of trade. Such accidents

92

Edwards 135, 165 Reprints 1058. Brig Concord (The), 13 U.S. 387, 9 Cranch 387 (1815). 94 Non-intercourse act of 13 June 1798, 1 Stat. 565. The exception in s.2 was ‘. . . unless by stress of weather, or want of provisions, or by actual force or violence. . .’. 95 Hallet and Bowne v. Jenks and others, 7 U.S. 210, 3 Cranch 210 (1805). 96 Ibid., at 219. 97 New York (The), 16 U.S. 59, 3 Wheat. (1818). 93

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With the burden of proof being placed on the person claiming the exemption, a high standard of proof was set, but not met. The expectation was that, inter alia, the ship’s papers and written instructions (indicating destination of the journey), appropriate charts, log book, and witnesses among those on board that can attest to events, be produced in court. As Livingston J. noted, there were numerous fraudulent claims to customs exemptions because of a distress port entry. Again before Livingston J., in the Aeolus, the Russian interests concerned likewise failed on the proof of necessity.99 In particular, when the ship alleged to be in distress entered a US port it did not immediately justify its entry on the ground of necessity, indicating, inter alia, that the entry was voluntary.100 The extent of exemption from certain jurisdictions may not extend to a situation where the very title over the ship in distress (so long as it is a private ship) is in dispute.101 During the American Civil War there were situations of neutral ships claiming distress entry into ports blockaded by the Union, and this was also occasionally abused by fraudsters. In the Diana, the master of the ship concerned had already been apprehended in an earlier attempt to run a blockade of the coast of Texas.102 The fact that he was not, in the words of the US Assistant Attorney-General, a novus hospes of the court and the fact that the blockade of Texas was well-known to the master and owners undermined the defence of necessity.103 In the same period the defence of necessity was successfully established in the Nuestra Senora de Regla, a ship built in New York for Spanish interests and in view of business with Cuba.104 The ship was forced into and given permission to take on coal in a blockaded port, but was eventually seized by the Union government as a prize. It was held that this was not a lawful prize and the owners were entitled to indemnity. The court suggested that this sort of loss may have been more properly a matter to be disposed at the diplomatic level, rather than by the courts.105

98 99 100 101 102 103 104 105

Ibid., at 68–69. Aeolus (The), 16 U.S. 392 (1818). Ibid., at 406–407. Schooner Exchange v. McFaddon, supra note 89, at 145–147. Diana (The), 74 U.S. 354 (1868). Ibid., at 358 and 360. Nuestra Senora de Regla, 84 U.S. 29 (1872). Ibid., at 31.

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In this period consistent case law can be found in other jurisdictions. In 1818, the Vice-Admiralty Court in Nova Scotia applied the principles of the Eleanor in relation to the Nabby, a case of an American ﬁshing vessel that was charged with illegal imports and exports, hovering and illegal ﬁshing.106 The court did not ﬁnd for the distressed ship, but noted the court’s moral and legal disposition to recognise distress entries when properly founded. In Canada (Attorney-General) v. MacDonell the Exchequer Court (the precursor of the Federal Court) held that a ship in distress is not an ‘arrived’ ship for customs law purposes when it enters port for shelter and without fraudulent intent.107 Its cargo could not be seized by customs authorities.

Observations of Jurists Various leading 17th and 18th century international jurists observed and commented on the state practices during their times, but in their brief comments it is not always apparent that they recognised a custom, and when there is such a hint, there does not appear to have been any one way of formulating it. Writing in the 17th century, Grotius, from whom one would have expected something, does not appear to have commented on this subject.108 Grotius simply recognised the Roman-Carthaginian treaties mentioned above, but in a different context. In 1737, Bynkershoek commented on Dutch practices and in relation to interference by belligerents in the trade of neutral ships with blockaded ports.109 Bynkershoek was of the view that neutral ships trading with enemy ports could be seized by a belligerent, but not where the neutral ship was in an enemy port as a result of stress of weather or ‘in cases of extreme and well-proved necessity’. This principle would re-appear in later efforts to codify the law of armed conﬂict at sea.

106 Judgement in the Case of the American Fishing Vessel, Nabby, Standley, master, 18 August, 1818, Court of Vice Admiralty, Halifax (The Nabby), as reported in the Quebec Mercury, 10 November 1818, 348, 356 at 356–357. 107 (1883), 1 Ex. C. R. 99. 108 Nor does it appear that Vittoria, Gentili, Selden and Welwood had anything to say. 109 Cornelius van Bynkershoek, Questionum Iuris Publici Libri Duo, Vol. II, Book I, Chap. XI, in J. Brown Scott, ed., The Classics of International Law (Oxford, Clarendon Press, 1930), 72 at 75, ‘The third clause ordains the conﬁscation of ships and cargo ‘which come out of said ports, not having been forced into them by stress of weather, although they be taken at a distance, unless they have after leaving the enemy’s port made a voyage to a port of their own country or to some other neutral or free port, in which case they shall not be condemned; but if in coming out of said enemy’s ports they are pursued by our own ships, and chased into another harbour as, for instance, their own, or that of their destination, and found on the high sea coming out of such port, they are to be conﬁscated’. He comments further on this in the next two paragraphs.

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Writing in his seminal work in 1758, Vattel recognised humanitarian treatment for ships entering national territory as a result of weather or necessity.110 But he did this in an indirect way, while commenting on protection of national territory: ‘Le Souverain peut defender l’entrée de son territoire, soit en general à tout étranger, soit en certain cas, ou à certaines personnes, ou pour quelques affaires en particulier, selon qu’il le trouve convenable au bien de l’Etat’.111 So prohibiting entry to foreigners was legitimate, but then he went on to write that: Et cette défense n’avoit rien que de juste, pourvú que l’on ne refusât point le sécours de l’humanité à ceux que la tempête, ou quelque nécessité contraignoit de se présenter à la frontière. Elle étoit salutaire à la Nation, sans blesser les droits de personne, ni même les devoirs de l’humanité, qui permettent, en cas de collision, de se préférer soi-même aux autres.112

Probably inﬂuenced by the revolutionary thinking of the Enlightenment, Vattel seems to suggest that while the pursuit of national self-interest is healthy, this should not trench on the rights of the person and the state’s humanitarian duties.113 This is an important point because the juxtaposition of the need to protect the state’s national interests vis-à-vis the provision of assistance to ships in distress, when the two appear to be inconsistent, is a theme that would reappear in modern times. There is a clearer recognition of the refuge custom by 19th century commentators. Commenting on the Creole, Wheaton and Legaré were reported to be of the view that ‘a vessel carried by stress of weather or forced into a foreign port is not subject to the law of such port’.114 The situation of warships, especially at a time of armed conﬂict, was probably an outstanding issue. Writing on an incident that occurred barely a decade before Vattel’s treatise, the 19th century jurist Ortolan described the incident of the ‘Elisabeth’, an English warship, in the context of the English-Spanish war over Cuba, and that entered Havana as a port of refuge following a hurricane in the Gulf of Mexico in 1746.115 There was an exchange between the captain and the Governor of Havana that recognised the application of the refuge custom to a belligerent warship.116 A situa-

110

Emmerich de Vattel, Le Droit de Gens, (1758), Book 2, Chap. 7, section 94. Ibid. 112 Ibid. 113 Ibid. 114 As reported by Moore, Digest, supra note 81, at 344. 115 M. Théodore Ortolan, Règles Internationales et Diplomatie de La Mer, Vol. 2, 4th edition (Paris, Librarie de Henri Plon, 1864), 322–323. 116 The exchange went as follows: English Captain: ‘Je viens vous remettre mon vaisseau, mes matelots, mes soldats et moi-même; je vous demande que la vie pour mon équipage . . .’ to which the response was: Spanish Governor: ‘Jamais . . . je ne commettrai une action infâme. Si nous vous avions pris en combattant en pleine mer ou sur nos 111

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tion of belligerency should be expected to suspend the application of the custom between belligerents. This was not a situation of a relationship between a belligerent and a neutral state. Ortolan commented on this case in situations where the only way to avoid a certain loss when confronted by imminent and irresistible danger is to request asylum in an enemy port.117 But examples of this sort, where a belligerent recognises a right of refuge for enemy warships were rare,118 and therefore it cannot be concluded the custom encompassed this situation as well.119

Assessment of the Custom During this Period By the end of the 19th century, there was signiﬁcant reciprocal inter-state practice, the key elements of which were: 1. Certain perils triggered the right (weather, enemies, pirates, necessity) 2. Any kind of ship or boat, including merchant vessels, warships, privateers and ﬁshing vessels enjoyed the right 3. Warships had to notify local authorities and conditions could be imposed (e.g., number of ships and duration of stay) 4. Refuge could be enjoyed in a variety of places (port, harbour, haven, creek, etc.) 5. Distressed ships enjoyed a right to undertake repairs and maintenance at commercial rates (i.e., implying protection from exploitation) and re-supply with provisions and water 6. Cargo could not be unloaded, except when some of it was to be sold by way of general average and with permission from local authorities to raise monies for the repairs, supplies and continuation of the original voyage 7. No customs duties were levied on the cargo, except in relation to part of the cargo that would have been deemed ‘imported’ to raise the needed monies

côtes, votre vaisseau nous appartiendrait, et vous seriez nos prisonniers; mais, battus par la tempête, c’est la crainte du naufrage qui vous a jetés dans ce port; j’oublie donc et je dois oublier que ma nation est en guerre avec la vôtre; vous êtes des hommes et nous aussi; vous êtes malheureux, et nous vous devons de la pitié. Faites réparer votre vaisseau en toute assurance. Vous partirez ensuite, et je vous donnerai un passe-port jusqu’au delà des Bermudes. Si vous êtes pris aprés avoir passé ce terme, le droit de la guerre vous aura mis dans nos mains; mais, en ce moment, je ne vois en vous que des étrangers pour qui l’humanité réclame des secours’. Ortolan, Ibid. 117 Ibid., 322. 118 See also O’Connell, supra note 88, at 856. 119 Rather, on this point one would be inclined to agree with Lauterpacht that it did not. L. Oppenheim, International Law: A Treatise, 7th edition, vol. II, H. Lauterpacht, ed. (London, Longmans, 1948), 479.

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8. The ship could depart freely, except in the case of privateers, whose departure depended on the time of the earlier departure of other vessels 9. Shipwrecked vessels and persons on board would be given any possible assistance and their property (ship, cargo, personal effects) would be protected 10. The ship had a right to consular assistance 11. The burden of proof that the entry was not voluntary rested with the ship, and to the satisfaction of local authorities or courts This last point is a very important one because the privileges entailed in the custom rested on the place of refuge being an unintended destination. There were instances of practice, such as the hiring of new crew at the place of refuge that did not appear to be very common. Not all treaties necessarily captured all of the above elements. However, the fact that those elements re-appeared, in whole or in part, in treaties suggests that the general pattern of the core right of refuge and the corresponding duty to receive and assist, and consequential privileges, were established by the end of the 18th century. Thereafter, 19th century state practice was sufﬁciently extensive and consistent with that pattern to suggest that the custom was further consolidated and reﬁned.

20th and 21st Centuries Multilateral Practice A dominant characteristic of international law-making in the 20th century is the use of multilateral negotiations, frequently involving codiﬁcation of custom and facilitation by international organisations. In the law of the sea, multilateralism has been dominant, in particular through the United Nations Conference on the Law of the Sea processes in 1958, 1960 and between 1973–1982. Much customary law on the regime of the high seas, national maritime zones, powers of the coastal state in zones of national jurisdiction including international navigation therein, and protection and preservation of the marine environment, inter alia, has been codiﬁed into mainstream conventional law. Since its establishment in 1948, IMO has become the multilateral forum for the making of international maritime law. Through numerous conventions, customs concerning shipping have been codiﬁed and a great body of regulatory law addressing standards of safety and environment protection has been adopted. Despite the extensive multilateral law-making practice, somehow the core of the refuge custom escaped codiﬁcation efforts, so that the custom has not been further developed in any meaningful manner through multilateral negotiations. However, and in some respects somewhat surprisingly, fringe aspects or consequences of the custom in the form of the exceptions it created were touched upon in some multilateral treaty instruments. There are four types of multilateral maritime instruments where full or partial codiﬁcation could have

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occurred, namely in port law instruments, IMO conventions on maritime safety and marine pollution, the conventions codifying the law of the sea, and the law of armed conﬂict at sea.

Port Law Conventions In the Convention on the International Regime of Maritime Ports, 1923 (Maritime Ports) states parties agreed to provide free, equal and mutual access to foreign ships in their ports, but the convention does not contain a dedicated provision for ships that enter a port in distress.120 However, the provisions of the statute accompanying the convention were made to apply ‘to ports of refuge specially constructed for that purpose’.121 The statute does not apply to ﬁshing vessels, but one Canadian court decision suggests that the ‘general right of exclusion is qualiﬁed by the recognised principle of affording shelter in stress of weather and possibly a refuge for replenishing food and water under special circumstances’.122 The Convention on the Facilitation of International Maritime Trafﬁc, 1965 (FAL), simply focussed on the documentary facilitation of arrival, stays and departures of ships, and without distinguishing between normal and distress situations.123 Reﬂecting earlier practices on quarantine, FAL provided for tighter controls where at least public health threats may exist, thus suggesting that the protective principle conditioned the treaty entitlements of any ship in port.124

Maritime Safety and Marine Pollution Conventions There are a number of important international maritime conventions adopted under IMO or other auspices where aspects of the custom might ﬁnd a place, such as the Convention on the Prevention of Dumping of Wastes and other Matter, 1972 and 1996 (London Convention),125 International Convention on

120 Convention on the International Regime of Maritime Ports, Geneva, 9 December 1923, 119 BFSP 568–581 (1924), Statute, Art. 2. 121 Ibid., Protocol of Signature, para. 1. 122 Canada (Attorney-General) v. Natalie S. (The), [1932] Ex. C. R. 155. 123 Convention on the Facilitation of International Maritime Trafﬁc (hereafter FAL), London, 9 April 1965, 4 I.L.M. 501, Art. 2. 124 FAL, ibid., Annex, s. 4. ‘The International Health Regulations constitute the norm. Illness on board a ship is required to be radioed in promptly to the port of destination, and health ofﬁcials may join a ship before entry into port. In cases of emergency constituting a grave danger to public health, ships that are carrying or are suspected of carrying infectious diseases may not be allowed to load or discharge cargo’. 125 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 29 December 1972, 1046 U.N.T.S. 120 as amended by the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 7 November 1996, 36 I.L.M. 1(hereafter London Convention).

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Safety of Life at Sea, 1974 (SOLAS Convention),126 International Convention for the Prevention of Pollution from Ships, 1973 and 1978 (MARPOL 73/78),127 Convention on Oil Pollution Preparedness and Response Cooperation, 1990 (OPRC Convention),128 International Convention on Maritime Search and Rescue, 1979 (SAR Convention)129 and International Salvage Convention, 1989 (Salvage Convention).130 The SOLAS and SAR Conventions contain provisions on coastal state assistance in situations of distress at sea, again reﬂecting an aspect of the custom, but beyond the humanitarian duty to assist, both conventions stop short of stipulating a duty on state parties to provide a place refuge.131 Similarly, the OPRC Convention provides for co-operation on contingency planning and response, but leaves no mention of where to take a stricken vessel.132 In general, none of the maritime conventions undertook a general codiﬁcation effort; however, the exceptional nature of a ship in distress was recognised and appropriate legal exceptions from the application of key provisions were included in the London Convention133 and MARPOL 73/78.134

126 International Convention for the Safety of Life at Sea, 1974, London, 1 November 1974, 1184 U.N.T.S. 2, as amended (hereafter SOLAS Convention). 127 International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, 1340 U.N.T.S. 184, as amended by Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978, 1340 U.N.T.S. 61 (hereafter MARPOL 73/78). 128 International Convention on Oil Pollution Preparedness, Response and Cooperation, London, 13 November 1990, 30 I.L.M. 733 (hereafter OPPRC). 129 International Convention on Maritime Search and Rescue, London, 27 April 1979, 405 U.N.T.S. 97 (hereafter SAR Convention). 130 International Convention on Salvage, London, 28 April 1989, A.T.S. 1998 No. 2 (hereafter Salvage Convention). 131 SOLAS Convention, supra note 126, Chap. V, Reg. 33 and Chap. V, Reg. 7(1); SAR Convention, supra note 129, Chap. 2, Art. 2.1.1. 132 OPPRC, supra note 128, Art. 1: ‘Parties undertake, individually or jointly, to take all appropriate measures in accordance with the provisions of this Convention and the Annex thereto to prepare for and respond to an oil pollution incident’. 133 London Convention, supra note 125, Art. V(1). In a 1977 law, Spain provided that the ‘penalties provided by this Act shall not apply to dumping in cases of force majeure, when the safety of human life or of a ship or aircraft is threatened’. Act No. 21/1977 of 1 April 1977 concerning the Imposition of Penalties in Cases of Marine Pollution by Dumping from Ships or Aircraft, s. 6, U.N.L.S. ST/LEG/SER.B/19, 159. New Zealand created a special defence to dumping offences in a ‘case of force majeure caused by stress of weather, for the purpose of securing the safety of any ship or aircraft or offshore installation or ﬁxed or ﬂoating platform, or any other artiﬁcial structure situated at sea or on the sea-bed’. Marine Pollution Act, 1974, s. 23(b), U.N.L.S. ST/LEG/SER.B/ 19, 331. 134 MARPOL 73/78, supra note 127, Annex 1, Reg. 11.

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Amongst the international maritime law conventions, Article 11 of the Salvage Convention comes closest to addressing places of refuge: A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into account the need for cooperation between salvors, other interested parties and public authorities in order to ensure the efﬁcient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general.135

This provision does not provide a clear legal obligation to provide a place of refuge, and indeed not even a duty to regulate port of refuge entry. Thus, the core duty of the refuge custom was not codiﬁed as it may have been understood in the 1980s. What the above provision now provides is simply a coastal state duty to take into account the co-operation needed among the actors concerned to enable successful salvage, when regulating or deciding on ports of refuge and other salvage matters. Naturally, successful salvage does entail the taking of the salved vessel into a place of safety, but this may not be a place in the coastal state. When the Salvage Convention was being negotiated the idea to have a provision on a place of refuge for the salved vessel was mooted, but not adopted. States were not ready to have a public law obligation in a private law instrument, although of course Article 11 does address a public law concern in providing what amounts to a state duty to consider (see Chapter 10 in this volume).136

International Law of the Sea Conventions As alluded to at the outset of this chapter, some recognition of an exceptional right of ships in distress is mentioned in the international law of the sea instruments. Both of the Geneva Convention on the Territorial Sea and Contiguous Zone, 1958 and the LOS Convention make an exception to the rule of continuity and expeditiousness in the exercise of innocent passage in the territorial sea (including archipelagic sea lanes and transit passage).137 The normal rule is that no stopping or anchoring is permitted during passage, but this is permitted in relation to ships suffering distress or force majeure.138 Moreover, the beneﬁt of the exception is extended to those ships that may be assisting the ship in distress. While on the one hand there is no codiﬁcation of the core of the custom, there is obvious recognition of its continuing existence. But what may be

135

Salvage Convention, supra note 130, Art. 11. This earlier discussion was referred to in Matters Arising from the Seventy-Fourth Session of the Maritime Safety Committee: Places of Refuge, IMO Doc. LEG 83/13/3, 28 August 2001. 137 LOS Convention, supra note 2. 138 Ibid. 136

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termed a ‘fringe’ of the custom, i.e., stopping and anchoring during what otherwise ought to be continuing navigation, is now codiﬁed as a conventional legal right with a counterpart obligation. The International Convention Intervention on the High Seas in Cases Relating to Oil Pollution Casualties, 1969 (Intervention Convention) could conceivably have contained reference to places of refuge for ships in maritime casualties.139 However, it did not. The Intervention Convention was designed to empower the coastal state with the necessary legal authority to intervene in relation to foreign ships involved in casualties on the high seas and that could harm its coastal interests.

Law of Armed Conﬂict at Sea Conventions As seen earlier, warships and neutral ships played an important role in the early development of the refuge custom. Multilateral instruments concerning the law of armed conﬂict and neutrality concluded towards the end of the 19th century and throughout the 20th century frequently referred to aspects of the custom. The Second International Peace Conference convened in The Hague in 1907 produced fourteen conventions. In Convention XIII, warships in distress in a neutral port enjoyed the possibility of prolonged stays but, like all warships in neutral waters, were allowed to re-supply up to the peacetime standard, and only re-fuel so as to be able to proceed to the nearest home port.140 Prizes in distress were also permitted to enter neutral ports and this would later be reiterated in the 1928 Havana Convention on Maritime Neutrality.141 On the other hand, Convention XI did not expressly exempt ships in distress from capture as other vessels, such as postal, ﬁshing and a limited range of other ships.142 The Declaration of London, 1908, came close to codifying the refuge custom in the context of naval war, but unfortunately it never entered into force after its rejection in Great Britain.143 The Hague Convention (XII) relative to the

139 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, 29 November 1969, 9 I.L.M. 25, and Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil, 2 November 1973, 13 I.L.M. 605. 140 Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War, The Hague, 18 October 1907, <www.icrc.org/ihl.nsf/ART?OpenView&Start= 1&Count=150&Expand=28#28>, 5 May 2005, Arts. 14, 17 and 19. The normal stay was 24 hours. 141 Convention XIII, ibid., Art. 21; Convention on Maritime Neutrality, Havana, 20 February 1928, <www.icrc.org/ihl.nsf/ART?OpenView&Start=1&Count=150&Expand =37#37>, 5 May 2005, Art. 17. 142 Convention (XI) relative to certain Restrictions with regard to the Exercise of the Right of Capture in Naval War, The Hague, 18 October 1907, <www.icrc.org/ihl.nsf/ ART?OpenView&Start=1&Count=150&Expand=26#26>, 5 May 2005. 143 The Declaration of London, 26 February 1909, in D. Schindler and J. Toman, eds.,

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Creation of an International Prize Court, 1907, provided for such court to apply generally recognised rules of international prize law.144 A naval conference of major powers, convened by Great Britain to ﬁnd consensus on those rules, produced the declaration. Conference rapporteur M. Renault noted that the purpose of the conference was primarily ‘to deﬁne, and, where needful, to complete what might be considered as customary law’.145 The Declaration itself contained only one provision that continued to recognise the existing practice of permitting a vessel in distress to run a blockade to enter a port, so long as it did not trade therein.146 A preliminary provision held that ‘the rules contained in the following Chapters correspond in substance with the generally recognized principles of international law’.147 Renault wrote an extensive report that reﬂected on the state of understanding on the situation of a distressed neutral vessel. The distress, that could be as a result of shortage of food or water, or because repairs were necessary, had to be acknowledged by the head of the forces of the blockade. Once distress was proven ‘the consequence follows of itself’. If the blockading force could address the needs of the distressed vessel itself, it could prevent port entry. If the ship re-supplied in the blockaded port, it could depart freely. The fundamental condition was that the neutral ship must not trade in the blockaded port.148 That submarines also beneﬁted from the refuge custom was also evident from the Nyon Agreement of 1937 concerning the Mediterranean.149 State parties agreed not to permit the presence of foreign submarines in their territorial seas, ‘except in case of urgent distress’ or after notiﬁcation to other member states, and to do so on the surface and accompanied by a surface ship. Urgent

The Laws of Armed Conﬂicts 3rd ed. (The Hague, Martinus Nijhoff, 1988), 845–856. See also Arthur Cohen, The Declaration of London (London, University of London Press, 1911). For a critical commentary from a British MP at the time, see T. Gibson Bowles, Sea Law and Sea Power (London, John Murray, 1910), Chap. VI, 174–205. 144 Convention (XII) relative to the Creation of an International Prize Court, The Hague, 18 October 1907, <www.icrc.org/ihl.nsf/ART?OpenView&Start=1&Count= 150&Expand=27#27>, 5 May 2005. Art. 7 provided: ‘If a question of law to be decided is covered by a treaty in force between the belligerent captor and a Power which is itself or whose subject or citizen is a party to the proceedings, the Court is governed by the provisions in the said treaty. In the absence of such provisions, the Court shall apply the rules of international law’. 145 General Report Presented to the Naval Conference on behalf of its Drafting Committee, prepared by M. Louis Renault (France) as Chairman of the Committee, in Cohen, supra note 143, at 70. 146 Declaration of London, supra note 143, Art. 7. 147 Declaration of London, ibid., Preliminary Provision. 148 Renault, in Cohen, supra note 143, at 75. 149 The Nyon Agreement, 14 September 1937, <www.icrc.org/ihl.nsf/ART?Open View&Start=1&Count=150&Expand=46#46>, 5 May 2005, Art. V.

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distress, although not deﬁned, suggested a situation of immediate necessity. There was similar Scandinavian practice concerning submarines during the same period.150

Regional Agreements Recently, legal provision for places of refuge for ships in distress has appeared in some regional multilateral agreement. The Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea was amended in 2002 to create a legal obligation for the 22 Mediterranean states to deﬁne national, subregional or regional strategies concerning reception in places of refuge, including ports, of ships in distress presenting a threat to the marine environment. They shall cooperate to this end and inform the Regional Centre of the measures they have adopted.151

It remains to be seen how this provision in the agreement will be implemented. European Union (EU) Mediterranean states (Cyprus, France, Greece, Italy, Malta, Slovenia and Spain) will need to co-ordinate their obligation under this agreement with EU Directive 2002/59/EC discussed below in the context of national legislative responses. North Sea and Baltic states have also addressed places of refuge at the regional level.152

150

Infra note 206. Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, combating Pollution of the Mediterranean Sea, Malta, 25 January 2002 (in force on 17 March 2004), Art. 16, <www.unepmap.gr/Archivio/All_ Languages/WebDocs/BC&Protocols/Emergency02_eng.pdf >, 21 June 2005. 152 E.g., Convention on the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, 9 April 1992 (in force on 17 January 2000), <www.helcom.ﬁ/stc/ﬁles/ Convention/Conv0704.pdf>, 1 August 2005 (hereafter Baltic Sea Convention), Annex IV, Reg. 12; Bonn Counter Pollution Manual (Chap. 26), adopted within the framework of the Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances, Bonn, 13 September 1983, (hereafter Bonn Agreement), <www.bonnagreement.org/eng/html/welcome.html>, 1 August 2005. 151

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Bilateral Practice In the 20th century there is signiﬁcantly more evidence of the continuity of the refuge custom in bilateral treaties of friendship, commerce and navigation than in multilateral instruments. Although two world wars signiﬁcantly disrupted international maritime trade among belligerents and their allies, following those conﬂicts there was an upsurge of bilateral agreements attempting to restore trade relationships. The treaty practice was global, with maritime powers and other trading states invoking the same principles in many of their trading relationships with other powers. When the right to refuge did not appear in commerce and navigation treaties, a careful reading of the MFN clause shows that the reciprocal commitment to treat each other’s vessels in the same manner is broad enough to cover any situation. Unlike the period between the 17th and 19th centuries, many of the 20th century bilateral treaties examined in this chapter demonstrate a high degree of textual convergence, capturing well the international community’s state of understanding and acceptance of the custom. Textual convergence was not restricted to the same state in its multiple bilateral treaties; rather, there appears to have been spill-over, sometimes with minor adjustments, but basically retaining the intrinsic core of the custom. The 20th century was also a time when MFN clauses became more common, but conditioned by overriding national interests when conﬂict occurred.

Pre-Second World War Although not the ﬁrst such agreement in the 20th century, the 1905 commerce and navigation agreement between Great Britain and Nicaragua contained an extensive clause that captured in large measure the custom at the time.153 After setting out a framework to ensure that ‘the respective vessels shall be treated on the footing of perfect equality’ in each other’s internal and inland waters,154 the treaty goes on to provide: Any ship of war or merchant-vessel of either of the High Contracting Parties which may be compelled by stress of weather, or by accident, to take shelter in a port of the other, shall be at liberty to reﬁt therein, to procure all necessary stores, and to put to sea again, without paying any duties other than such as would be payable in a similar case by a national vessel. In case, however, the master of a merchant-vessel should be under the necessity of disposing of a part of his merchandise in order to defray his expenses, he shall be bound to conform to the Regulations and Tariffs of the place to which he may have come.

153

United Kingdom of Great Britain and Northern Ireland and Nicaragua: Treaty of Friendship, Commerce and Navigation, Managua, 28 July 1905, 1736 U.N.T.S. 251 (1993). It is interesting to note that the UK submitted this treaty for registration with the UN Secretariat only in 1993! 154 Ibid., Arts. VII and VIII.

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Chapter 8 If any ship of war or merchant-vessel of one of the High Contracting Parties should run aground or be wrecked upon the coasts of the other, such ship or vessel, and all parts thereof, and all furniture and appurtenances belonging thereunto, and all goods and merchandise saved therefrom, including any which may have been cast into the sea, or the proceeds thereof if sold, as well as all papers found on board such stranded or wrecked ship or vessel, shall be given up to the owners or their agents when claimed by them. If there are no such owners or agents on the spot, then the same shall be delivered to the British or Nicaraguan Consular ofﬁcer in whose district the wreck or stranding may have taken place, upon being claimed by him within the period ﬁxed by the laws of the country; and such Consular ofﬁcers, owners, or agents shall pay only the expenses incurred in the preservation of the property, together with the salvage or other expenses which would have been payable in the like case of a wreck of a national vessel. The goods and merchandise saved from the wreck shall be exempt from all duties of customs, unless cleared for consumption, in which case they shall pay the same rate of duty as if they had been imported in a national vessel. In the case either of a vessel being driven in by stress of weather, run aground or wrecked, the respective Consular ofﬁcers shall, if the owner or master or other agent of the owner is not present, or is present and requires it, be authorized to interpose in order to afford the necessary assistance to their fellow-countrymen.155

This lengthy provision deserved to be fully reproduced because several other treaties adopted very similar provisions. Great Britain would adopt identical or near-identical provisions in its treaties with Portugal in 1914,156 Spain in 1922,157 Latvia in 1923,158 Romania in 1930159 and Siam (Thailand).160 Agreements between Japan and Peru in 1924,161 Denmark and Siam in 1937,162

155

Ibid., Art IX. United Kingdom of Great Britain and Northern Ireland and Portugal: Treaty of Commerce and Navigation, Lisbon, 12 August 1914, 1712 U.N.T.S. 355 (1993), Art. 15. This agreement was also registered with UN Secretariat in 1993. 157 Spain and the United Kingdom: Treaty of Commerce and Navigation, Madrid, 31 October 1922, 28 L.N.T.S. 339 (1924), Art. 18. 158 United Kingdom and Latvia: Treaty of Commerce and Navigation, London, 22 June 1923, 20 L.N.T.S. 395 (1923), Art. 18. 159 Great Britain and Romania: Treaty of Commerce and Navigation, London, 6 August 1930, 123 L.N.T.S. 307 (1931), Art. 26. This agreement included inland waterways. 160 Great Britain and Northern Ireland and Siam: Treaty of Commerce and Navigation, Bangkok, 23 November 1937, 188 L.N.T.S.333 (1938), Art. 17. 161 Japan and Peru: Treaty of Amity, Commerce and Navigation, Lima, 30 September 1924, 102 L.N.T.S. 33 (1930), Art. XIV. 162 Denmark and Siam: Treaty of Friendship, Commerce and Navigation, 5 November 1937, 188 L.N.T.S. 187 (1938), Art. 17. 156

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Japan and Siam in 1937,163 all contained an identical provision to the one above, plus an additional stipulation concerning consular notiﬁcation of the shipwreck. An agreement between France and Greece in 1929 contained two provisions with very similar content, but further elaborated on activities that were not considered trading operations.164 Over two provisions, an agreement between Germany and Italy had very similar content and an additional stipulation to the effect that the handing over of property to the owner or consular representative should be on the basis of an application subject to a time bar, and in the case of a suit, the decision rested with the courts.165 An agreement between The Netherlands and Siam in 1938 contained the sense of the above provision, plus consular notiﬁcation, provision of assistance, consular direction of salvage efforts instead of local authorities, consular guarantee of payment of salvage expenses due, action taken by coastal authorities for safety of navigation and protection of works on the coast, in ports and along waterways, and application to forced landing or wrecks of aircraft.166 Other agreements contained provisions that were not as extensive as the above, but stipulated some of the essential elements. By way of example, these included Finland and Latvia, 1924,167 Japan and Mexico, 1924,168 Guatemala and Italy, 1926,169 Denmark and Spain, 1928,170 The Netherlands and Turkey, 163

Japan and Siam: Treaty of Friendship, Commerce and Navigation, Bangkok, 8 December 1937, 188 L.N.T.S. 375 (1938), Art. 21. 164 ‘In such cases the following shall not be deemed to be trading operations: the loading and unloading of goods to enable the ship to be repaired or to be disinfected if it has been put in quarantine; transhipment to another vessel, should the original vessel have become unseaworthy; the operations necessary for obtaining supplies for the ship and crew; the sale of damaged goods, if permitted by the Customs Administration; and also the sale of other goods or any loans which the master may be compelled to raise to defray his expenses, or to obtain the funds required to enable him to continue the voyage. The master shall, however, under the same conditions as the masters of vessels of the country itself, comply with local regulations and pay the duties and charges of the operations effected, at the local rates’. France and Greece: Convention of Commerce, Navigation and Establishment, Athens, 11 March 1929, 95 L.N.T.S. 401 (1929), Art. 9. 165 Germany and Italy: Treaty of Commerce and Navigation, Rome, 31 October 1925, 52 L.N.T.S. 179 (1926), Arts. 34 and 35. 166 The Netherlands and Siam: Treaty of Friendship, Commerce and Navigation, Bangkok, 1 February 1938, 193 L.N.T.S. 13 (1938), Art. 12. 167 Finland and Latvia: Treaty of Commerce and Navigation, Helsingfors, 23 August 1924, 37 L.N.T.S. 383 (1925), Art. 18. 168 Japan and Mexico: Treaty of Commerce and Navigation, Mexico, 8 October 1924, 36 L.N.T.S. 259 (1925), Art. XXII. 169 Guatemala and Italy: Treaty of Commerce and Navigation, 15 September 1926, 70 L.N.T.S. 175 (1928), Art. 13. 170 Denmark and Spain: Convention of Commerce and Navigation, Madrid, 2 January 1928, 71 L.N.T.S. 271 (1928), Art. 6.

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1928,171 Germany and Persia, 1929,172 and Romania and Turkey, 1929.173 An agreement on river navigation between Brazil and Bolivia in 1910 simply referred to an exemption of tonnage dues in the case of vessels putting into port owing to force majeure, so long as they depart with the cargo or the cargo is transhipped to its original destination.174 Agreements between Denmark and Finland, 1923,175 The Netherlands and Siam, 1925176 and Sweden and Turkey, 1929177 did not speciﬁcally address refuge per se, but contained provisions for assistance to a ship that stranded or shipwrecked. In general, it was more frequent, than infrequent, to have provisions that included both refuge as well as assistance to stranded and shipwrecked vessels.

Post-Second World War In the aftermath of the Second World War the practice of bilateral treaties on commerce and navigation continued. For the most part, treaty provisions on refuge tended to be shorter. There was no one ‘model clause’; however, there were some formulations that appear to have been emulated grosso modo in a number of agreements. The ﬁrst of these consisted either of one integrated provision or two separate provisions, either as part of an article or as a separate article. In 1946, China and the US entered into an agreement with a provision that read: ‘If a vessel of either High Contracting Party shall be forced by stress of weather or by reason of any other distress to take refuge in any of the ports, places or waters of the other High Contracting Party not open to foreign commerce and navigation, it shall receive friendly treatment and assistance and such supplies and materials for repair as may be necessary and available’.178

171

The Netherlands and Turkey: Convention of Commerce and Navigation, Angora, 25 July 1928, 93 L.N.T.S. 279 (1929), Art. XVI. 172 Germany and Persia: Convention of Commerce, Customs and Navigation, Teheran, 17 February 1929, 111 L.N.T.S. 263 (1931), Art. XI. 173 Romania and Turkey: Convention regarding Establishment, Commerce and Navigation, Ankara, 11 June 1929, 112 L.N.T.S. 139 (1931), Arts. 27 and 28. 174 Brazil and Bolivia: Treaty of Commerce and River Navigation, Rio de Janeiro, 12 August 1910, 888 U.N.T.S. 225 (1973), Art. 13. This agreement was registered with the UN Secretariat only in 1973. 175 Denmark and Finland: Treaty of Commerce and Navigation, 3 August 1923, 21 L.N.T.S. 269 (1924), Art. XIX. 176 The Netherlands and Siam: Treaty of Friendship, Commerce and Navigation, The Hague, 8 June 1925, 56 L.N.T.S. 57 (1926), Art. IX. This provision focuses on stranding and shipwreck. 177 Sweden and Turkey: Treaty of Commerce and Navigation, Ankara, 19 September 1929, 119 L.N.T.S. 53 (1931), Art. 21. This provision concerned ships or boats in the case of stranding or shipwreck. 178 China and USA: Treaty of Friendship, Commerce and Navigation, Nanking, 4 November 1946, 25 U.N.T.S. 69 (1949), Art. XXII(5).

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This also applied to warships and ﬁshing vessels. There was an identical provision in a 1949 agreement between the US and Italy.179 This provision was limited in application to restricted ports and presumably other ports were covered by MFN or equal treatment provisions. A second cluster of agreements completed in the 1950s by the US with Ireland, Israel, Denmark, Nicaragua, Oman, Korea and Togo contained the following ‘minimalist’ text: ‘Vessels of either Party that are in distress shall be permitted to take refuge in the nearest port or haven of the other Party, and shall receive friendly treatment and assistance’.180 These latter agreements applied to all public or private vessels, but had limited application to ﬁshing vessels and warships. A third group of agreements concluded between the 1940s and 1960s by Bulgaria, Czechoslovakia, Democratic People’s Republic of Korea, the Federal Republic of Germany (FRG), Hungary, Italy, People’s Republic of China, and the Union of Soviet Socialist Republics (USSR), included the following provision: If a vessel of one of the Contracting Parties is in distress or is wrecked on the coast of the other Party, such vessel and its cargo shall enjoy the same advantages and immunities as are granted under the laws and regulations of the appropriate Party in similar circumstances to vessels of the most-favoured State and their cargoes. The necessary aid and assistance shall be afforded at all times, and in the same measure as in the case of national vessels, to the master, crew and passengers, and to the vessel and its cargo. It is agreed that articles salvaged from a vessel which has been in distress or wrecked shall not be liable to any customs duties, provided that such articles are not intended for consumption inside the country.181

179

USA and Italy: Treaty of Friendship, Commerce and Navigation, Rome, 2 February 1948, 79 U.N.T.S. 171 (1951), Art. XX(4). 180 USA and Ireland: Treaty of Friendship, Commerce and Navigation, Dublin, 21 January 1950, 206 U.N.T.S. 269 (1955), At. XVIII(5) and (6); Israel and USA: Treaty of Friendship, Commerce and Navigation, Washington, 23 August 1951, 219 U.N.T.S. 237 (1955), Art. XIX(5) and (6). This agreement also included ‘repairs, as well as supplies and materials for repairs, as may be necessary and available’. Ibid., Art. XIX(5); USA and Denmark: Treaty of Friendship, Commerce and Navigation, Copenhagen, 1 October 1951, 421 U.N.T.S. 105 (1962), Art. XIX(5) and (6); USA and Nicaragua: Treaty of Friendship, Commerce and Navigation, Managua, 21 January 1956, 367 U.N.T.S. 3 (1960), Art. XIX(5) and (6); USA and Korea: Treaty of Friendship, Commerce and Navigation, Seoul, 28 November 1956, 302 U.N.T.S. 281 (1958), Art. XIX(5) and (6); USA and Oman: Amity, Economic Relations and Consular Rights Treaty, Salalah, 20 December 1958 380 U.N.T.S. 181 (1960); USA-Togo: Amity and Economic Relations Treaty, Lomé, 8 February 1966, 680 U.N.T.S. 159 (1969). 181 USSR and Hungary: Treaty of Commerce and Navigation, Moscow, 15 July 1947, 216 U.N.T.S. 247 (1955), Art. 9; USSR and Czechoslovakia: Treaty of Commerce and Navigation, Moscow, 11 December 1947, 217 U.N.T.S. 35 (1955), Art. 8; USSR and

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This provision is more speciﬁc in its connecting the treatment of ships in distress to MFN status and providing a customs exemption. There is no qualiﬁcation on the type of vessel. Also, by including shipwrecks the provision had a wider application. A somewhat similar clause, retaining the essential idea of refuge and assistance, but without mentioning customs exemptions, was included in some agreements also involving Bulgaria, Czechoslovakia, Denmark, the German Democratic Republic (GDR), Romania and the USSR.182 Japan and Yugoslavia used a slightly simpliﬁed text of the above provision, but retained the reference to customs exemptions for salved goods.183 A fourth type of provision can be found in several more agreements in the 1950s involving the US and some of its trading partners including the FRG, Japan and The Netherlands. This provision stipulated refuge as follows: Vessels of either Party, in case of shipwreck, stranding, or of being forced to put into the ports, places and waters of the other Party, whether or not open to foreign commerce and navigation, shall enjoy the same assistance and protection as are in like cases enjoyed by vessels of such other Party or of any third country, and shall not be subject to any duties or charges other than those which would be payable in like circumstances by vessels of such other Party or of any third country. The cargoes of such vessels of either Party and all articles salvaged from them shall be exempt from customs duties unless entered for consumption may be subject to measures for the protection of the revenue pending their exit from the country.184

Bulgaria: Treaty of Commerce and Navigation, Moscow, 1 April 1948, 217 U.N.T.S. 97 (1955), Art. 10; USSR and Italy: Treaty of Commerce and Navigation, Moscow, 11 December 1948, 217 U.N.T.S. 181 (1955), Art. 13; USSR and PRC, Treaty of Trade and Navigation, Peking, 23 April 1958, 313 U.N.T.S. 135 (1958), Art. 9; USSR and FRG: Agreement concerning General Matters of Trade and Navigation, Bonn, 25 April 1958, 346 U.N.T.S. 71 (1959), Art. 6 (this provision is slightly simpliﬁed); USSR and Democratic People’s Republic of Korea: Treaty of Trade and Navigation, Moscow, 22 June 1960, 399 U.N.T.S.3 (1961), Art. 9. This last agreement had an additional stipulation as follows: ‘Where there are special agreements on such matters, aid shall likewise be afforded in accordance with such agreements’. 182 Denmark and USSR: Treaty of Commerce and Navigation, Moscow, 17 August 1946, 8 U.N.T.S. 201 (1947), Art. 7; Czechoslovakia and GDR: Treaty of Trade and Navigation, Berlin, 25 November 1959, 374 U.N.T.S. 101 (1960), Art. 12; Czechoslovakia and Bulgaria: Treaty of Trade and Navigation, Soﬁa, 8 March 1963, 495 U.N.T.S. 219 (1964), Art. 13; Romania and Czechoslovakia: Treaty of Trade and Navigation, Bucharest, 16 December 1963, 527 U.N.T.S. 285 (1965), Art. 10. 183 Japan and Yugoslavia: Treaty of Commerce and Navigation, Belgrade, 28 February 1959, 341 U.N.T.S.179 (1959), Art. 14. 184 USA and Japan: Treaty of Friendship, Commerce and Navigation, Tokyo, 2 April 1953, 206 U.N.T.S. 143 (1955), Art. XIX(5); USA and FRG: Treaty of Friendship, Commerce and Navigation, Washington, 29 October 1954, 273 U.N.T.S. 3 (1957), Art. XXI; Netherlands and USA: Treaty of Friendship, Commerce and Navigation, The Hague, 27 March 1956, 285 U.N.T.S. 231 (1958), Art. XIX(5).

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A ﬁfth type of provision, similar in some respects to the immediately preceding but also containing signiﬁcant differences, appears in agreements between the 1950s and 1980s between Japan and several of its trading partners, including Argentina, Bulgaria, GDR, Hungary, Philippines, Poland, Norway and Romania. This provision articulated refuge as follows: In case of shipwreck, damage at sea or forced putting in, either Party shall extend to vessels of the other Party the same assistance and protection and the same exemptions as are in like cases accorded to its own vessels. Goods salvaged from such vessels shall be exempt from all customs duties, unless the goods are entered for domestic consumption, in which case the prescribed duties shall be paid. If a vessel of either Party has stranded or has been wrecked on the coasts of the other Party, the appropriate authorities of such other Party shall notify the occurrence to the nearest competent consular ofﬁcer of the country to which the vessel belongs.185

Finally, there were other agreements that did not follow any of the above formulations, even though they involved states that used one or more of the above in other agreements, including Great Britain, Greece, Haiti, India, Israel, Japan, Oman and the US.186 Two of these deserve closer attention because of the

185 Norway and Japan: Treaty of Commerce and Navigation, Tokyo, 28 February 1957, 280 U.N.T.S. 87 (1957), Art. XIII; Japan and Philippines: Treaty of Amity, Commerce and Navigation, Tokyo, 9 December 1960, 1001 U.N.T.S. 265 (1976), Art. VI(5) (this provision has an additional stipulation that ‘goods not entered for domestic consumption may be subject to measures for the protection of the revenue pending their exit from the country’), followed by the subsequent Treaty of Amity, Commerce and Navigation, Manila, 10 May 1979, 1272 U.N.T.S. 235 (1982), Art. XI(5); Japan and Argentina: Treaty of Friendship, Commerce and Navigation, Tokyo, 20 December 1961, 613 U.N.T.S. 323 (1967), Art. XII(5); Japan and Romania: Treaty of Commerce and Navigation, 1 September 1969, 799 U.N.T.S. 165 (1971), Art. 8; Japan and Hungary: Treaty of Commerce and Navigation, Tokyo, 20 October 1975, 1103 U.N.T.S. 87 (1978), Art. 8; Japan and GDR: Treaty on Commerce and Navigation, Tokyo, 28 May 1981, 1358 U.N.T.S. 215 (1984), Art. 11; Japan and Poland: Treaty on Commerce and Navigation, Tokyo, 16 November 1978, 1272 U.N.T.S. 215 (1982), Arts. 13 and 14; Japan and Bulgaria: Treaty of Commerce and Navigation, Soﬁa, 28 February 1970, 799 U.N.T.S. 229 (1971), Art. 8. 186 Great Britain and Sultanate of Muscat and Oman: Treaty of Friendship, Commerce and Navigation, Muscat, 20 December 1951, 149 U.N.T.S. 247 (1952), Art. 12 (includes aircraft); India and Sultanate of Muscat and Oman: Treaty of Friendship, Commerce and Navigation, Muscat, 15 March 1953, 190 U.N.T.S. 69 (1954), Art. 6 (includes aircraft); Greece and USA: Treaty of Friendship, Commerce and Navigation, Athens, 3 August 1951, 224 U.N.T.S. 279 (1955)(hereafter Greece-USA, 1955), Art. XXII; Great Britain and Japan: Treaty of Commerce, Establishment and Navigation, London, 14 November 1962, 478 U.N.T.S. 29 (1963)(hereafter Britain-Japan, 1962), Art. 21; Israel and Haiti:

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lengthy formulation and character of the state parties as major trading, shipowning or military powers. The Greece-US agreement in 1951 contains a comprehensive provision that includes all aspects of the custom as it evolved over time, including entrance in ports or havens, assistance to be given, normal fees and dues to be charged, right of the master to sell part of the cargo (but subject to compliance with local import tariffs), protection of salved property and ship documents, salved property used for local consumption (including protective measures in case of re-export), hiring of seafarers and role and powers of consular ofﬁcers.187 An important stipulation that appeared in some other treaties further provided that: ‘If a vessel of either Party is wrecked within a port or constitutes a navigational hazard within the territorial waters of the other Party, the authorities of such other Party may order measures to be taken which they consider necessary with a view to preventing damage that might otherwise be caused by such wrecked vessel to port facilities or to other vessels’.188 This provision safeguards the right and power of local authorities (e.g., port authority) to take whatever protective measures are necessary in the interests of the continued operation of the port. The 1962 agreement between Great Britain and Japan contained a similar protective provision. Again, this agreement contained a lengthy provision on refuge that captured much of the custom, and especially emphasising the rights of the vessel when in the territory of one of the parties, whether it was wrecked, stranded, was under any duress or required services.189 The rights include the right to ‘call upon any salvage or other vessels of whatever nationality to render such services as it [i.e., the vessel] may consider necessary’.190 In a contemporary context, it is likely that a national maritime administration reserves an overriding authority to intervene itself. There was also the occasional ﬁshing agreement that provided for refuge for ships in distress. The Convention Concerning Fishing in the Black Sea, 1959 was a trilateral agreement between Bulgaria, Romania and the USSR. Speciﬁc ports of refuge that ﬁshing vessels from those countries could enter to shelter from bad weather or in case of damage were identiﬁed.191 Fishing vessels were allowed to ‘repair the damage and to replenish their supplies of foodstuffs, Treaty of Friendship, Commerce and Navigation, Port-au-Prince, 28 March 1967, U.N.T.S. vol. 630 (1968), Art. 10. 187 Greece-USA, 1955, supra note 186, Art. XXII(1)–(4). 188 Ibid., Art. XXII(3). 189 Britain-Japan, 1962, supra note 186, Art. 21. 190 Ibid., Art. 21(2)(b). 191 Arts. 2 and 3, Convention concerning Fishing in the Black Sea (hereafter Black Sea Convention), Varna, 7 July 1959, 377 U.N.T.S. 220 (1960). Between the same three states see also Convention Concerning Cooperation for the Saving of Human Lives and Assistance to Vessels and Aircraft in Distress in the Black Sea, Moscow, 11 September 1956, 266 U.N.T.S. 234 (1957).

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drinking water, fuel, lubricants and other ship’s stores so that the vessel may continue on its route or return to its nearest home port, and an opportunity to dispose of their fresh catch at the ports of refuge if it cannot be preserved on board the vessel’.192 Other types of agreements may also provide for distress calls. For example, a 1984 agreement between Chile and Argentina settling territorial and maritime boundary disputes recognised the exceptional situation of distressed ships in navigation between the Strait of Magellan and the Argentine ports in the Beagle Channel.193 The agreement provides a duty for the ship in distress to inform the nearest naval authority.194 In summarising the survey of 20th century bilateral treaty practice, one can observe both textual congruence and diversity, and yet the obligations entered into appear as fairly consistent. Writing on Venetian maritime customs in the context of the Rhodian Sea Law, Ashburton considered that one circumstance that may be indicative of a custom is ‘the constant borrowing by one statute from another’.195 This may have been the case in the 19th century, but was certainly the case in 20th century bilateral treaty practice. The overall trend after the Second World War appears to favour simpler text that captured the core idea of assistance to a ship that has been forced to put into a port, and a set of expectations for the ship in distress, those on board, the consular representation, and the coastal state and its local authorities. Many states subscribed to more than one textual formulation with different trade partners at any one time. Preliminary observation might suggest inconsistency, but it does not appear to be reﬂected in inconsistency in state practice in the bilateral treaties examined. Bilateral treaty practice on trade and navigation produced a complex network of reciprocal expectations that formed the basis of initially bilateral and eventually multilateral trade. The principles and rules generated were not the outcome of any one treaty, but of the multitude of practices promoted by one or more treaties. In this century inconsistency would rather appear in some national administrative practices.

National Practices Legislation As noted earlier in connection with bilateral treaties of commerce and navigation and the 1923 Maritime Ports Convention, an international regime for the 192

Article 3, Black Sea Convention, ibid. Treaty of Peace and Friendship between Chile and Argentina, Vatican City, 29 November 1984, <www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/ TREATIES/CHL-ARG1984PF.PDF>, 11 July 2005. 194 Ibid., Annex 2, Art. 3. 195 Ashburton, supra 25, at cxxiii. 193

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entry of foreign ships into domestic ports has been promoted. Port entry is regulated through international agreements and domestic law. Port entry by warships is generally regulated separately. For the purposes of identifying pertinent legislation reﬂecting the refuge custom, this chapter has examined available samples of legislation that identiﬁed the special situation of ships in distress and the exceptions they generated. In addition to restricting port stays for military or security reasons, the national legislation of some states occasionally provided exemptions for forced port entry and duration of stay. In regulating visits of foreign warships in peacetime, French law provided an exception for distress, bad weather and unforeseen situations.196 Italian legislation in the 1930s regulated anchorages for foreign warships in time of peace, but speciﬁc exemptions were provided for ships in distress.197 The Spanish law on port entry visits by warships also had an exception for ships in distress, whether ‘because of damage, bad weather or other similar unforeseen circumstances’.198 The warship was to be provided with ‘whatever assistance it may require’.199 Italian legislation also restricted trafﬁc of all ships in certain areas for security reasons, and again distress exceptions were provided.200 Current US legislation makes an exception for ships in distress in what is otherwise restricted navigation in naval defence sea areas and subject to entry authorisation.201 Denmark applied the innocent passage provisions to warships, and again protected stopping and anchoring rendered necessary by force majeure or distress.202 It prescribed an advance

196

Décret du 21 mai 1913 portant règlement, pour le temps de paix, des visites des bâtiments de guerre ètrangers dans les mouillages et ports du littoral français et des pays de protectorat, Art. 5(b), U.N.L.S. ST/LEG/SER.B/6, 374. Also subsequently in Décret du 29 septembre 1929 portant règlement, pour le temps de paix, des conditions d’accès et de séjour des bâtiments de guerre ètrangers dans les mouillages et ports du littoral de la France et des placés sous protectorat ou le mandat français, Art. 3, U.N.L.S. ST/LEG/SER.B/6, 377. 197 Royal Decree No. 2423 of 24 August 1933, Art. 5(b), U.N.L.S. ST/LEG/SER.B/6, 380. 198 Order of 27 March 1958 on Visits by Foreign Warships to Spanish Ports and Transit through Waters under Spanish Jurisdiction, s. 2(c), U.N.L.S. ST/LEG/SER.B/ 19, 146–147. 199 Ibid. 200 Royal Decree No. 400 of 24 February 1938 concerning the Control of Navigation in the La Maddalena Archipelago, Art. 3, U.N.L.S. ST/LEG/SER.B/6, 169–170; Royal Decree No. 1489 of 16 September 1939 regulating Maritime Trafﬁc in the Waters of Augusta, Art. 3, ibid., 170; Royal Decree No. 1490 of 16 September 1939 regulating Maritime Trafﬁc in the Waters of Pantelleria, Art. 3, ibid., 171. 201 Title 32 – National Defense, 32 C.F.R. 761.12(g). 202 Ordinance of 27 February 1976 Governing the admission of Foreign Warships and Military Aircraft to Danish Territory in Time of Peace, s. 3(2), U.N.L.S. ST/LEG/

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permission requirement for simultaneous passage of more than three warships, but removed notiﬁcation and permission requirements for vessels in distress.203 Other states recognised such exceptional situations.204 Some national legislation provided exemptions for vessels involved in a foreign-armed conﬂict. French law provided restrictions for belligerent warships, but excepted delays resulting from distress or bad weather.205 In co-ordinated declarations on rules of neutrality in 1938, Denmark, Finland, Iceland, Norway and Sweden stated they would not permit belligerent warships to stay in their ports for more than 24 hours ‘unless they suffered damage, ran aground or under stress of weather’.206 Reﬂecting the international law concerning neutral ships and blockades discussed earlier, Italian law authorised the commander of a blockading force to permit a neutral ship in distress to enter or exit the blockaded port, as long as it did not trade.207 The contemporary law of the sea legislation of many coastal states implementing the LOS Convention reﬂects the provisions in the Convention (frequently verbatim) concerning ships in distress, and ships that assist them, in the context of innocent passage in archipelagic waters or the territorial sea as may be the case.208 Some national law of the sea legislation contains speciﬁc

SER.B/19, 143. This provision was retained in Ordinance Governing the Admission of Foreign Warships and Military Aircraft to Danish Territory in Time of Peace, 16 April 1999, s. 3(1). 203 Ibid., ss. 3(4) and 5. 204 E.g.: former Yugoslavia: Act of 1 December 1948 concerning the Coastal Waters of the Federal People’s Republic of Yugoslavia, U.N.L.S. ST/LEG/SER.B/6, Art. 6, 314; similarly in subsequent legislation, Law of 22 May 1965 on Yugoslavia’s Marginal Seas, Contiguous Zone and Continental Shelf, Arts. 12–13, N.D.L.O.S. vol. I, 35. France in relation to overseas territories: Instruction du 29 avril 1966 relative à la navigation dans les eaux intérieures et territoriales et aux escales dans les ports et rades des départements et territoires d’outre-mer, ss. 1–2, U.N.L.S. ST/LEG/SER.B/15, 81–82; Algeria: Decree No. 72–194 of 5 October 1972 for the Peacetime Regulation of the Passage of Foreign Warships through the Territorial Waters and of their Calls, Arts. 8–9. 205 Décret portant ﬁxation de certaines règles de neutralité en cas de guerre maritime du 18 octobre 1912, U.N.L.S. ST/LEG/SER.B/6, 639. 206 Stockholm Declaration regarding Similar Rules of Neutrality, Stockholm, 27 May 1938, Natalino Ronzitti, ed., The Law of Naval Warfare (Dordrecht, Nijhoff, 1988), Arts. 2, 4 and 7, 788–834. Art. 2 extended the rule to submarines that enter prohibited waters under duress or stress of weather. Art. 54 constituted the basic rule applicable to warships in general. Art. 7 stated that ‘Prizes of foreign nationality shall not be brought into a Danish [Finnish, Icelandic, Norwegian, Swedish] port or anchorage save on account of unseaworthiness, under stress of weather or for lack of fuel or provisions. . .’. Ibid., 793. 207 R.D. 8 luglio 1938, n. 1415, Gazzeta Ufﬁciale n. 211, 25 Septembre 1938, s. 174. The same law also contained distress provisions for belligerent warships, ibid., ss. 17, 22 and 23. 208 E.g.: Antigua and Barbuda: Maritime Areas Act, 1982, Act No. 18 of 17 August

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requirements for ships in distress. For instance, St. Vincent requires compliance with international safety and vessel source pollution regulations, although these would probably apply in any case.209 Some require explicit permission before entry into national waters.210 Occasionally, there is national legislation that speciﬁcally waves prior authorisation, in which case the shipmaster is required to report immediately and by any means to the harbour master, who may issue instructions in turn.211 Force majeure exemptions from restricted navigation areas have also been regulated.212 However, most requirements for ships in dis-

1982, s. 2; The Bahamas: Archipelagic Waters and Maritime Jurisdiction Act, 1993, Act No. 37 of 1993, s. 2; Barbados: Barbados Territorial Waters Act, 1977, Act 26 of 1977, s. 2; Brazil: Law No. 8.617 of 4 January 1993 on the Territorial Sea, the Contiguous Zone, the Exclusive Economic Zone and the Continental Shelf, Art. 3(2); Bulgaria: Maritime Space, Inland Waterways and Ports Act of the Republic of Bulgaria, 28 January 2000, Art. 19(3); Croatia: The Maritime Code, 1994, Art. 22; France: Decree No. 85/185 of 6 February 1985 regulating the Passage of Foreign Ships through French Territorial Waters, Art. 2(b); Grenada: Granada Territorial Waters Act, 1978, Act No. 17 of 1978, s. 2; Iran: Act on the Marine Areas of the Islamic Republic of Iran in the Persian Gulf and the Oman Sea, 1993, s. 5; Jamaica: Maritime Areas Act, 1996, s. 13(2); Poland: Act concerning the Maritime Areas of the Polish Republic and the Marine Administration, 21 March 1991, Art. 7; Romania: Act concerning the Legal Regime of the Internal Waters, the Territorial Sea and the Contiguous Zone of Romania, 7 August 1990, Art. 8; Russian Federation: Federal Act on the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation, 16 July 1998, Art. 10(2); Samoa: Maritime Zones Act, 1999, Act No. 18 of 25 August 1991, s. 11(3); Seychelles: Maritime Zones Act, 1999, Act No. 2 of 1999, s. 17(4)(a); Somalia: Law No. 37 on the Territorial Sea and Ports of 10 September 1972, Art. 7(2); St. Vincent and the Grenadines: Maritime Areas Act, 1983, Act No. 15 of 19 May 1983, s. 13(2)(c); Sudan: Territorial Waters and Continental Shelf Act, 1970, s.2(h); Syria: Law No. 28, s. 6(b); Trinidad and Tobago: Archipelagic Waters and Exclusive Economic Zone Act, 1986, Act No. 24 of 11 November 1986, s. 11(3). The statutes cited in this note are available at the UN Division for Ocean Affairs and Law of the Sea website, <www.un.org/Depts/los/ LEGISLATIONANDTREATIES/index.htm>, 23 May 2005. See also Indonesia: Indonesian Government Regulation No. 37, 2002, on the Rights and Obligations of Foreign Ships and Aircraft Exercising the Right of Archipelagic Sea Lane Passage through Designated Archipelagic Sea Lanes, in IMO Doc. SN/Circ. 200/Add. 1, 3 July 2003, Art. 4. 209 St. Vincent, supra note 208, s. 13(3). 210 E.g., Spain’s new law on the subject: Royal Decree 210/2004 on Monitoring and Information of Maritime Trafﬁc, Boletin Oﬁcial del Estado No. 39, 14 February 2004, 6868–6878. 211 Bulgaria, supra note 208, Art. 13; Croatia, supra note 208, Arts. 17 and 1014(7). 212 E.g., France: Prefectural Order No. 1/93 Prohibiting the Movement in the Bouches de Bonifacio of Tankers Carrying Oil and Ships Carrying Dangerous or Toxic

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tress are normally to be found in primary and subsidiary legislation concerning merchant shipping and ports, wherein the national maritime administrations and/or port authorities are authorised to provide directions to a ship for port safety, security, environmental and other purposes. An interesting private law provision in Croatia’s Maritime Code provides that ‘foreign ships in the internal waters . . . because of force majeure or for reasons of safe navigation, as long as force majeure or needs of navigation are present’ is not subject to enforcement or security.213 However, they may be subject to enforcement or security in relation to claims arising during passage in Croatian waters, presumably for services such as salvage, towage and pilotage.214 Certain ships in distress have occasionally been addressed through dedicated provisions. While entitled to distress entries, Spanish law has required nuclear vessels to stay in designated places, with national authorities reserving the right to take measures to secure compliance.215 There are instances of distress exemptions from entrance of ﬁshing vessels in prohibited ﬁshing areas.216 Some states adapted the innocent passage exception rule to ﬁshing vessels.217 Some states’ customs legislation, which normally applied taxes on imported products, provided restrictions on what ports could be entered and speciﬁc exemptions from import dues when the goods concerned were not voluntarily brought within customs jurisdictions because of distress. In the early 1900s, Canadian customs law made it unlawful for a ship to enter a place other than a port of entry, unless the reason for such entry was stress of weather or an unavoidable cause.218 At around the same period in the US, customs law exempted ships in distress from the requirement to enter a customs house.219

Substances, 15 February 1993, Art. 1. The itinerary will be prescribed. See also France: Act No. 68–1181 of 30 December 1968 relating to the Exploration of the Continental Shelf and to the Exploitation of its Natural Resources, Art. 32, which provides a force majeure defence in case of unlawful entry into a safety zone around an offshore installation. 213 Croatia: Maritime Code, supra note 208, Arts. 868–869. 214 Ibid., Art. 1014. 215 Act No. 25/64 of 29 April 1964 Concerning Nuclear Energy, s. 77, U.N.L.S. ST/LEG/SER.B/16, 47. 216 Royal Legislative Decree No. 1764 of 12 April 1937 to Approve the regulations Governing Sponge-Fishing in the Waters of Libya and of the Italian Islands in the Aegean, s. 4, U.N.L.S. ST/LEG/SER.B/6, 526. 217 E.g.: Myanmar (Burma): Territorial Sea and Maritime Zones Law, 1977, Pyithu Hluttaw Law No. 3 of 9 April 1977, s. 6(b), U.N.L.S. ST/LEG/SER.B/19, 8; Croatia, supra note 208, s. 26. 218 Canadian Customs Act, R.S. 1906 c. 47, s.186. 219 US Tariff Act of 1922 (Comp. St. Supp.1923), s. 441 (s. 5841e10).

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The 1973 Italian customs law has a similar provision forbidding deviation, while making an exception for distress situations.220 Various other national customs laws created similar exceptions.221 Contemporary SOLAS international safety at sea standards require that a safety management system be in place on board commercial vessels on international voyages. In the US, the Coast Guard may deny port entry to vessels not possessing certiﬁcated safety management systems. The only exception is in relation to a foreign vessel that enters US waters under force majeure.222 Similarly, no ship carrying oil may enter a US port unless it is MARPOL 73/78 compliant, unless it enters under force majeure.223 Further, and as part of a new security measures adopted in 2003, the US introduced notice of arrival requirements and procedures for ships calling into domestic ports, but vessels in distress are exempted.224 A major development in state practice is EU Directive 2002/59/EC establishing a Community Vessel Trafﬁc Monitoring and Information System.225 Unlike other legislation relying on exemptions for ships in distress, this particular instrument provides a detailed framework and prescribes plans to accommodate ships in distress in places of refuge. It is binding on 25 states bordering on the Atlantic Ocean and several seas. The preamble highlights that ‘non-availability of a place of refuge may have serious consequences in the event of an accident at sea’.226 Article 20 of the Directive, the key provision on refuge, states: Member States, having consulted the parties concerned, shall draw up, taking into account relevant guidelines by IMO, plans to accommodate, in the waters under their jurisdiction, ships in distress. Such plans shall contain the necessary arrangements and procedures taking into account operational and environmental constraints, to ensure that ships in distress may immediately go to a place of refuge subject to authorisation by the competent authority. Where the Member State considers it necessary and feasible, the plans must contain arrangements for the provision of adequate means and facilities for assistance, salvage and pollution response.

220

Testo unico delle disposizioni legislative in material doganale, approvato con D.P.R. 23 gennaio 1973, n. 43, Gazzetta Ufﬁciale (Suppl), n. 80 del 28 Marzo, s. 104. 221 E.g: Lebanon, Code des douanes, édicté par l’arrêté n. 422 du 30 juin 1954, s. 69, U.N.L.S. ST/LEG/SER.B/6, 177; Libya, Customs Law of 1954, s. 14, U.N.L.S. ST/LEG/SER.B/6, 178; Italy, Customs Act No. 1424 of 25 September 1940, s. 35, U.N.L.S. ST/LEG/SER.B/6, 172. Formerly, Italian law provided other distress exemptions in its customs law, e.g., in a 1942 monopoly law for salt and tobacco trade. 222 Title 33 – Navigation and Navigable Waters, 33 C.F.R. 96.390. 223 33 C.F.R. 151.08(a). 224 32 C.F.R. 160.203(b)(3). 225 Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 Establishing a Community Vessel Trafﬁc Monitoring and Information System and repealing Council Directive 93/75/EEC, Ofﬁcial Journal L208/10, 5 August 2002. 226 Ibid., Preamble, para. 16.

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Plans for accommodating ships in distress shall be made available upon demand. Member States shall inform the Commission by 5 February 2004 of the measures taken in application of the ﬁrst paragraph.227

Although the Directive does not apply to all ships, it covers all major commercial vessels.228 ‘Place of refuge’ is deﬁned as ‘a port, the part of a port or another protective berth or anchorage or any other sheltered area identiﬁed by a Member State for accommodating ships in distress’.229 A ship that is refused port entry is considered a hazard to shipping and a threat to maritime safety and coastal stations are required to communicate such information to neighbouring stations, and this would lead to inspection and veriﬁcation in a subsequent port of entry.230 A list of designated coastal stations for notiﬁcation purposes has to be made available.231 In situations of exceptionally bad weather, measures to prohibit port entry or departure may be taken, but this is ‘without prejudice to the duty of assistance to ships in distress’.232 It is worth noting in Article 20 that the duty to assist is accompanied by a duty to maintain a state of readiness to assist.233 Appropriate measures may be taken to ensure martime safety and environment protection and competent authorities may ‘instruct the master to put in at a place of refuge in the event of imminent peril, or cause the ship to be piloted or towed’.234 EU Member States are expected to co-operate, include in ‘drawing up, if appropriate, concerted plans to accommodate ships in distress’.235 These requirements are expected to generate both legislative and administrative responses from EU Member States, thus multiplying further pertinent state practice behind the refuge custom, and will be monitored by the Commission.236 It remains to be seen how Member States will implement the Directive, and in particular the extent to which the provision of refuge is characterised more as an obligatory than a discretionary requirement. The IMO

227

Ibid., s. 20. E.g., warships and ﬁshing vessels, ibid., s. 2. 229 Ibid., s. 3(m). 230 Ibid., s. 16. 231 Ibid., Art. 22. 232 Ibid., Art. 18(1). 233 Some countries, such as France, Spain and South Africa, retain salvage tugs to assist ships in distress, sometimes in joint venture with private salvors. National Research Council, Reassessment of the Marine Salvage Posture of the United States (Washington, D.C., National Academy Press, 1994), 11. 234 Ibid., Art. 19 and Annex IV: Measures available to Member States in the event of a threat to maritime safety and the protection of the environment. 235 Ibid., Art. 23. 236 The Commission will be monitoring Member State implementation, including on Art. 20. States are required to provide reports on implementation progress by 5 February 2007 and on full implementation by 31 December 2009. Ibid., Art. 26. 228

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Guidelines lean in the direction of discretion. Already in legislatively implementing the EU Directive, Spain appears to take the view that there is no obligation to provide refuge and has set ﬁnancial security requirements at very high levels (see Chapter 6 in this volume).237

Policy and Administrative Practices The administrative decision to grant or refuse the request for refuge constitutes important evidence on the state of the refuge custom. Unfortunately, it does not appear that any maritime administration maintains a historical record of all requests for refuge. Part of the difﬁculty is that distress entry requests are frequently made to the nearest port and the port authority may have the necessary autonomy to make a local decision. It is thus impossible to determine how often refuge situations, as distinct from distress calls at sea, actually arise and what percentage result in refusals, and under what conditions. As a result, the modern state practice discussed below consists of publicised examples. In the contemporary information era, publicised examples may have more general inﬂuence on the practices of other maritime administrations, and this may be signiﬁcant in ascertaining state practice. The known instances of denial of refuge tend to be those publicised since the late 1970s. These are signiﬁcant in that they appear to have placed important provisos on the right of refuge (as distinct from the right to receive assistance), and emphasised the humanitarian right to save life over the action to save the ship and cargo, which are considered an ‘economic’ concern.238 Surveys of incidents by the Comité Maritime International and Özcayir, among others, include several instances since the 1970s where ships were denied refuge, or were initially denied refuge but subsequently permitted entry when it was safe to do so.239 In other instances, a grant of refuge to one ship was followed by a denial

237 Royal Decree 210/2004 of 6 February 2004. See comment by J. Timmermans (International Salvage Union president), “New Spanish Law on Places of Refuge”, 4 Shipping & Transport Lawyer, 2004, 34. 238 See A. Chircop, “Living with Ships in Distress: A New IMO Decision-Making Framework for the Requesting and Granting of Refuge”, 3 WMU Journal of Maritime Affairs, 2004, 31–49. 239 Z. Oya Özçayir, “Ports of Refuge”, 9 Journal of International Maritime Law, 2003, 486–495; “Places of Refuge: Report of the CMI to the IMO”, CMI Yearbook 2002 (Antwerp, CMI, 2002), 117–146, at 139–142. See also: G. Kasoulides, “Vessels in Distress: ‘Safe Havens’ for Crippled Tankers”, 11 Marine Policy, 1987, 184–195; R. B. Clarke, The Waters Around the British Isles: Their Conﬂicting Uses (Oxford, Clarendon, 1987), 186–195. The ‘Eastern Power’ (leaking oil, 2000) and the MV ‘Kitano’ (ﬁre on board, 2001) were permitted to enter ports of refuge in Atlantic Canada after their conditions were stabilised. “Canada to let leaking oil tanker in Newfoundland”, CBC News Update, 9 December 2000; “Ship ‘safe’ to enter harbour”, Halifax Chronicle Herald, 24 March 2001.

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of refuge to another.240 But perhaps the three instances of denial of refuge that have made the most lasting impression are the ‘Erika’ (1999), ‘Castor’ (2001) and ‘Prestige’ (2002), mentioned in Chapter 1. The ‘Erika’ and ‘Prestige’ became maritime casualties with consequential massive coastal pollution after refuge was denied by France and Spain respectively. The ‘Castor’ incident ended with no such misfortune, but only after several Mediterranean states denied the salvor’s request to enter sheltered waters to transfer the cargo. The states concerned acted out of the belief that their decision protected their coastal interests, and that their decisions were not unprecedented. Perhaps Spain best captured the view of these states, that its responsibility was primarily humanitarian, and that once the crew were rescued, which was the case in all three instances, there remained no further coastal state obligation towards the ship. At ﬁrst blush, the publicised refusals suggest a counter-practice to the refuge custom, or at a minimum an increase of restrictive conditions. However, those refusals have also sparked international responses in multilateral, regional and national state practice aimed at ensuring that ships in distress are assisted to the extent possible, while protecting sensitive coastal state interests. In various intergovernmental and industry forums, there has been criticism of refuge denials that were subsequently followed by the loss of the ship with catastrophic consequences. Some of those responses include the establishment of structures and procedures as decision-support, and thereby to promote clarity, consistency and predictability. Clearly, the IMO Guidelines constitute an important global development in this regard, even though the debate on the Guidelines and the Guidelines themselves, make no reference to the refuge custom. While on the one hand the Guidelines acknowledge no coastal state obligation to provide refuge, they constitute a new procedural decision-support international standard for the coastal authority in deciding whether to grant or refuse the request for refuge (see Chapter 2 in this volume). In time, and because they are expected to be used widely, the Guidelines may well be considered as a new standard of due diligence in decision-making in such situations. Perhaps one of the most important recent regional developments in this regard is the formal designation of places of refuge. Whereas the IMO 240

E.g., the Toledo, infra note 254. In February 1990, and a few weeks before the ‘Toledo’ made its refuge request to Ireland, the Irish Minister of Marine was considering granting refuge to another ship, the ‘Tribulus’. In Parliament he stated, ‘I consider that, unless there are grave reasons to the contrary, we should always provide shelter to vessels in distress . . . I intend to permit the vessel to take refuge in Bantry Bay in the interests of safety of life. If the vessel was refused admission there would be a serious risk to the life of the crew’. Private Notice Questions – Damaged Carrier, Dáil Éireann, vol. 395, 6 February 1990. The ‘Tribulus’ did spill some oil in Bantry Bay and this did not assist the request of the ‘Toledo’!

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Guidelines do not stipulate a requirement to designate places of refuge, EU Directive 2002/59/EC, requires their designation. Several European states are in the process of designating and publicising places of refuge for ships in need of assistance.241 Although potentially suitable places are or will be identiﬁed as required by the Directive, EU states are likely to maintain case-by-case decision-making as this will facilitate ﬂexibility to enable appropriate responses. Their responses also clarify responsibility for decision-making. As discussed elsewhere in this book, Denmark, Germany and Spain were the ﬁrst states to designate and publicise such places (see Chapters 6, 17 and 18). The UK has also designated places and publicised a partial list, but would not rule out designating any other place as may be needed (see Chapter 16). Sweden already has an inventory of possible places of refuge and is planning new legislation.242 Ireland has adopted a national policy on places of refuge and produced guidelines to assist decision-making.243 Not all European states will eventually proceed to publicise places of refuge, although they are likely to have, at a minimum, a policy to deal with incidents on a case-by-case basis.244 In other major regions there are a variety of policy and administrative practices that attest to the endurance of the refuge custom by continuing to maintain it operational. The US Coast Guard Manual retains a long-standing chapter on ships in distress.245 In Asia, in 1997 the China Marine Rescue Centre (PRC) and China Rescue Association (Taipei) set up a 24-hotline to enable the ships in distress of either party in the Taiwan Strait to ‘request permission to enter the waters and harbors of the other side’.246 In 2002 Australia produced national

241 In relation to those that have not implemented the Directive, the Commission has commenced infringement proceedings, a preliminary step before instituting proceedings in the European Court of Justice. See “The Commission Starts Infringement Process against 12 Member States for Failing to Transpose a key Maritime Safety Directive”, Europa Press release, IP/04/268, 26 February 2004. 242 Communication from Urban Hallberg, Manager, Strategic Planning, Sjofartsverket (Swedish Maritime Administration), Norrköping, Sweden, 23 March 2005. The Maritime Administration Coast Guard has proposed legislative amendments to the Ministry of Industry. The proposal is for the rescue commander in charge or responsible authority will be authorised to decide on a suitable place of refuge and on a case-by-case basis. 243 Communication from Eugene Clonan, Marine Pollution & Salvage Manager, Irish Coast Guard, Ireland, 13 December 2004. See also Irish Coast Guard Operations Manual, Part 3, Annex L: Places of Refuge. 244 See Chircop, supra note 238, at 43. 245 US Coast Guard Marine Safety Manual, Volume VI: Ports and Waterways Activities, Chap. 1: Ports and Waterways Safety, at 21 (F. Force Majeure). 246 K. W. Allen, “Conﬁdence-Building Measures and the People’s Liberation Army”, in: B. J. Dickson, ed., Remaking the Chinese State (Florence, KY, Routledge, 2001), 228 at 247.

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guidelines to assist risk assessment and decision-making on places of refuge (see Chapter 14 in this volume).247

Judicial Practice There appears to be relatively sparse case law in this period. In a series of cases, especially in the 1930s, Canadian courts considered the right to refuge of ships in distress in the context of contraband and ﬁsheries and generally followed the test set out in the Eleanor. Forced entry as a result of stress of weather or other unavoidable cause was a legitimate defence in relation to customs violations in the port of entry.248 In relation to ﬁshing vessels taking refuge in British Columbia territorial waters, the Supreme Court of Canada held that the standard to be met was ‘such a condition of atmosphere and sea as would produce in the mind of a reasonably competent and skilful master, possessing courage and ﬁrmness, and well grounded bona ﬁde apprehension that if he remains outside the Canadian waters he will put in jeopardy his vessel and cargo’.249 The right to refuge depended on good faith on the part of claimants. In general, Canadian courts adopted a restrictive approach in interpreting the right and the ensuing privileges. Thus a ﬁshing vessel’s taking on water and undertaking repairs in a place of shelter did not entail a further right to also purchase ice.250 If a repair was not justiﬁed by immediate necessity, but was the result of failure to maintain the ship in seasonable repair, the defence was undermined.251 Ships enjoying the right of refuge must respect the local law. In Cashin v. Canada the court adopted a narrow view in stating that refuge did not provide exemptions from local law or jurisdiction. The court concede that it is ‘a wellrecognized principle, supported by the jurisprudence as well as by the opinions of authors on international law, that a ship, compelled through stress of weather, duress or other unavoidable cause to put into a foreign port, is, on

247

National Plan Management Committee, National Maritime Place of Refuge Risk Assessment Guidelines (November 2002). The Guidelines, which are voluntary, were endorsed by the Australian Transport Council on 23 May 2003. They allow case-by-case decision-making and clarify responsibilities. While ‘there is at present no international requirement for a country to provide a place of refuge for vessels in distress’ there is ‘the duty of Australia to render assistance to ships in distress’. 248 Canada v. Valiant (The) (1914), 15 Ex. C. R. 392; Rex v. Flahaut, [1935] 2 D.L.R. 685. 249 May (The) v. Canada, [1931] S. C. R. 374; Queen City (The) v. Canada, [1931] S. C. R. 387. 250 Canada v. Natalie S. (The), supra note 122. According to the court, the Fisheries Treaty of 1818 did not permit this. 251 May (The) v. Canada, supra note 246.

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grounds of comity, exempt from liability to the penalties or forfeitures which, had she entered the port voluntarily, she would have incurred’.252 In this case, the ship in distress did not make the required customs declaration, and this was held to be an offence under the Customs Act. The court did not concede an exemption from the making of the report, holding that this ‘principle must not be too widely interpreted’.253 In more recent times, in 1995, the Irish High Court of Admiralty in the M.V. Toledo considered the judicial recognition and domestic application of the right of refuge as a customary norm.254 The court recognised that established principles of international customary law may become part of domestic law as a result of usage, so long as they are not contrary to local law. The ship concerned requested refuge after it developed holes and started to take on water in heavy weather. The cargo was not oil, but potash. The crew were airlifted and salvage was provided to the ship. The ship was refused refuge, had to be beached in the UK, and eventually towed out and scuttled. The court rejected the claim against the Irish government and held: In summary, therefore, I am satisﬁed that the right of a foreign vessel in serious distress to the beneﬁt of a safe haven in the waters of an adjacent state is primarily humanitarian rather than economic. It is not an absolute right. If safety of life is not a factor, then there is a widely recognised practise among maritime states to have proper regard to their own interests and those of their citizens in deciding whether or not to accede to any such request. Where in a particular case, such as the ‘Toledo’, there was no risk to life as the crew had abandoned the casualty before a request for refuge had been made, it seems to me that there can be no doubt that the coastal state, in the interest of defending its own interests and those of its citizens, may lawfully refuse refuge to such a casualty if there are reasonable grounds for believing that there is a signiﬁcant risk of substantial harm to the state or its citizens if the casualty is given refuge and that such harm is potentially greater than that which would result if the vessel in distress and/or her cargo were lost through refusal or shelter in the waters of the coastal state. The abandonment of a ship in distress before refuge is sought is an important ingredient in assessing whether or not the casualty should be granted refuge by the coastal state. There are two reasons why that is so; ﬁrst, the absence of any risk to human life excludes the most compelling reason in support of an application for refuge. Secondly, abandonment of a ship carrying a substantial valuable cargo is patently an act which would be resorted to by an experienced master only in circumstances of major distress, and this in itself is cogent evidence that the casualty is seriously damaged and, therefore, may cause signiﬁcant harm to the coastal state and/or its citizens.255

252

[1935] Ex. C. R. 103. Ibid. 254 ACT Shipping (OTE) Ltd. v. Minister for the Marine, Ireland and the AttorneyGeneral (The MV Toledo), [1995] 2 I.L.R.M. 30. 255 Ibid., 48–49. 253

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In effect, the court prioritised the humanitarian dimension of the right of refuge, divorcing self-preservation interests of those on board from the safety of the ship and cargo. By doing so, this led the court to believe that once the public authorities discharged their duty by airlifting the crew, they were able to then further prioritise the perceived interests of the coastal state (i.e., lack of suitable refuge areas, threat to gas platforms and the possibility of bunker oil pollution) when deciding on whatever other action may be taken in relation to the ship and cargo. The court was persuaded by the argument that the modern context of shipping and the threats it poses to coastal state interests are fundamentally different from the past. But in effect, although providing a narrowing interpretation, the refuge custom continues to be recognised. In a more recent case, the High Court in Auckland noted that a local statute, the Port Companies Act, did not ‘override any international obligations to provide a port of refuge where the circumstances so require’.256

Observations of Jurists Early in the 20th century, the extent (if at all) to which distressed enemy merchant vessels enjoyed protection was unclear. Smith noted that ‘juristic doctrine is decidedly in favour of immunity for such ships’.257 He noted that certain enemy vessels in distress were ‘ordinarily immune not only from destruction but also from attack’.258 He also noted that the practice varied among states and that French law between the 17th and 19th centuries authorised the capture of shipwrecked enemy vessels.259 In comparison, the practice in relation to neutral vessels was less controversial. Smith concludes that the standard for enemy vessels in distress was perhaps too high, and in fact no agreement was reached on this issue at the Second Hague Peace Conference in 1907.260 The Institute de Droit International took on the challenge of formulating a rule for such vessels in the 1913 Oxford Manual of Naval War and permitted the enemy to possess, destroy, capture or seize them.261

256

The Queen Margreth – De Nationale Investeringsbank NV v. The Ship Queeny Margreth (1997) 11 P.R.N.Z. 454. 257 F. Smith, The Destruction of Merchant Vessels under International Law (London, Dent & Sons Ltd., 1917), 68. 258 Ibid. 259 Ibid. 260 Ibid. 261 Oxford Manual of Naval Warfare, adopted by the Institute de Droit International on 9 August 1913, in N. Ronzitti, ed., The Law of Naval Warfare (Dordrecht, Nijhoff, 1988), 277–328, Art. 31 at 290 and Art. 34 at 292. Art. 37 provided a limited protection from capture only when the enemy merchant vessel could not leave the port within a stipulated period because of force majeure, and in which case it would be detained for the duration of the war and returned after its termination. Ibid., Art. 37 at 292.

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Insofar as other vessels were concerned, there has been a long-standing common view on the entitlement to protection on humanitarian grounds, but some divergence of opinion on the consequences of that entitlement. In 1927 Jessup, who expressed some of the strongest views on the subject, wrote that in the case of force majeure ‘a foreign vessel in territorial waters may claim as of right an entire immunity from the local jurisdiction’.262 ‘If a ship is driven in by storm, carried in by mutineers, or seeks refuge for vital repairs or provisioning, international customary law declares that the local state shall not take advantage of its necessity’.263 On assessing the case law, he held that ‘It is basically so sound that it is believed its established position in international law today could not be successfully questioned by any government’.264 The coastal state’s freedom of action in the territorial sea ‘is restrained by the ‘right to seek shelter in distress’.265 After considering English, French and American cases, Colombos came to a similar conclusion in the different editions of his classic textbook between the 1940s and 1970s. He also stated that the distressed ship in a foreign port ‘is not subject to the local regulations of the port with regard to any incapacity, penalty, prohibition, duties or taxes in force at that port’.266 As noted in the discussion of bilateral treaty practice, one can come to a different view on the ‘absolute’ nature of the right of refuge. In the 1970s, O’Connell commented on the case law at length and concluded that the rule ‘allows for immunity only when local laws are breached for reasons of force majeure, and it does not envisage total immunity from jurisdiction’.267 In 1992 Jennings and Watts stated the custom as follows: ‘By ancient custom a foreign vessel which has to take refuge in a port owing to stress of weather or other danger to its safety, enjoys a certain immunity from the local jurisdiction’ (emphasis added).268 Several others commented on the custom, but there does not appear to be consensus on the full extent of immunity from jurisdiction and in what areas.269

262 Philip C. Jessup, The Law of Territorial Waters and Maritime Jurisdiction (New York, Jennings Co., 1927), 194–208, at 194. 263 Ibid. 264 Ibid., 208. 265 Ibid. 266 C. J. Colombos, The International Law of the Sea, 6th Rev. Ed. (London, Longman, 1967), 329–330, at 329. 267 O’Connell, supra note 88, at 853–858. 268 Citing several authorities on this subject, R. Jennings and A. Watts, eds., Oppenheim’s International Law 9th Ed., Vol. 1 (London, Longman, 1992), 624. 269 G. Schwarzenberger and E. D. Brown, A Manual on International Law, 6th edition (Oxon., Professional Books Ltd., 1976), 83–84; I. P. Blishchenko, gen. ed., The International Law of the Sea (Progress Press, Moscow, 1988), 27 and 38; A.-M. de Zayas, “Ships in Distress”, in: R. Bernhardt, ed., Max Planck Encyclopaedia of Public International Law, Vol. 4 (Amsterdam, North Holland, 2000), 397–400; P. Malanczuk,

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The refuge custom continues to be recognised in relation to warships in internal waters. In its 1995 San Remo Manual, the International Institute of Humanitarian Law included a provision on the passage or temporary stay of warships in internal waters for 24-hour period, unless an extended period is ‘unavoidable on account of damage or stress of weather’.270 In the last few years and currently, the CMI has played an important role in providing a forum for discussion on places of refuge for ships among international maritime lawyers.271 An important question that has recently been raised by CMI is whether the international maritime community has come to a point where it needs new conventional law, possibly through a new instrument or an amendment to an existing one, to address the subject of refuge for ships in distress.272 The reasoning behind the proposal includes the perception of national CMI delegations that ‘The right, according to customary international law, for a vessel in distress to be granted a place of refuge no longer appears to be recognized by many States as an absolute right and has become

Akehurst’s Modern Introduction to International Law, 7th edition (New York, Routledge, 1997), 175; R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edition (Manchester, Manchester University Press, 1999), 64. 270 International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conﬂicts at Sea (Cambridge, Cambridge University Press, 1995), Art. 21 at 12. 271 CMI has also been tasked by IMO to assist discussions in the Legal Committee, and for this purpose it conducted surveys among member national maritime law associations (see Chapter 5). An International Sub-Committee on Places of Refuge was established. A major discussion that included consideration of the custom occurred at the XXXVIIIth Conference of the CMI, Vancouver, 30 May–4 June, 2004. 272 See: Places of Refuge: Submitted by the Comité Maritime International (CMI), IMO Doc. LEG 89/7, 19 August 2004 (hereafter CMI Report); “Report of the International Sub-Committee on Places of Refuge”, CMI Yearbook 2004 (Antwerp, CMI, 2004), 386–393. See also: H. Ringbom, “You Are Welcome, But . . . Places of Refuge and Environmental Liability and Compensation, with Particular Reference to the EU”, CMI Yearbook 2004 (Antwerp, CMI, 2004), 208–233; “Discussion Paper of the International Association of Ports and Harbors”, CMI Yearbook 2004 (Antwerp, CMI, 2004), 236–246; E. van Hooydonk, “The Obligation to Offer a Place of refuge to a Ship in Distress”, CMI Yearbook 2003 (Antwerp, CMI, 2003), 403–445; S. Hetherington, “‘Prestige’ – Can the Law Assist?”, CMI Yearbook 2003 (Antwerp, CMI, 2003), 361–402; R. Shaw, “Places of Refuge: International Law in the Making?”, CMI Yearbook 2003 (Antwerp, CMI, 2003), 329–360; R. Shaw, “Designation of Places of Refuge and Mechanism of Decision Making”, CMI Yearbook 2003 (Antwerp, CMI, 2003), 446–456; F. L. Wiswall, “Penal Liability”, CMI Yearbook 2003 (Antwerp, CMI, 2003), 468–469; G. Timagenis, “Reception Facilities for Ships in Distress”, CMI Yearbook 2003 (Antwerp, CMI, 2003), 470–478; W. van der Velde, “The Position of Coastal States and Casualty Ships in International Law”, CMI Yearbook 2003 (Antwerp, CMI, 2003), 479–498.

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clouded’.273 Also, related legal issues seem to be marginally addressed by a number of international conventions that need to be co-ordinated to effectively address the modern problem.274 The IMO Legal Committee considered the proposal, but the majority of delegations saw no need to draft further conventions.275 Their view was that liability and compensation issues were already addressed by existing conventions and that rather than create a new convention, greater effort should go into ensuring that all the pertinent maritime conventions are brought into force to close current gaps in the regime.276

CONTEMPORARY STATE OF THE CUSTOM AND ITS CONSEQUENCES As indicated very early in this chapter, an authoritative assessment of a custom is possible only through the decision of an international judicial body, and to date that has not occurred in relation to the refuge custom. While this has not been an exhaustive study, it has considered signiﬁcant practice over a long period of time that enables identiﬁcation of continuities, discontinuities and novelties. The practice behind the custom is sufﬁciently voluminous to indicate what is considered as acceptable practice. It is clear that many states continue to observe the custom, or elements of it, in one form or another. That practice also includes practice in relation to competing principles (such as protection and precaution) that may override aspects of the custom. Customary law is inherently dynamic because state interests are not static, and when they evolve, they may do so inconsistently with aspects of the custom. As D’Amato has noted, what may be perceived to be illegal might in fact constitute the seed for a new rule.277

The Basic Humanitarian Idea At a minimum, today the refuge custom entails a fundamental right of selfpreservation for persons on board a ship in distress, and a counterpart humanitarian obligation by those in a position to do so to assist and receive those persons. This includes ships and coastal states in the vicinity. It includes salvage, which has a humanitarian dimension to it in life salvage. Today salvage is

273

CMI Report, ibid. Ibid. 275 Report of the Legal Committee on the Work of the Eighty-Ninth Session, IMO Doc. LEG 89/16, 4 November 2004, 27–28. 276 Ibid., 28. 277 D’Amato, supra note 8, at 60 and 97. 274

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a separate commercial institution in private maritime law. The SOLAS Convention duty of other ships to assist is separate from the refuge custom, although it stems from the same humanitarian idea. Of all those in a position to assist, it is the coastal state that has the central duty in the refuge custom. The coastal state has a duty to undertake search and rescue, but the performance of this obligations per se do not discharge the basic humanitarian obligation. A particular situation or circumstance might dictate a greater effort. For example, an aspect of that duty is to assist the shipwreck, passengers, crew and property on board.

The Peril Experienced by the Ship The right of self-preservation is triggered by various perils that a ship at sea might encounter, including stormy weather (actual or anticipated), or other situation of necessity, such as the occurrence of structural or equipment failure while at sea (and of such an extent as to threaten the safety of the ship). In the past, mutiny on board and pursuit by pirates and enemies were also perils that justiﬁed refuge. There has not been recent practice in relation to these, although it is conceivable that in a modern day context, piracy could be a reason for the taking of refuge. There is no limit to the possible calamities on board a ship that may pose a serious threat to those on board.

The Ship Concerned Since early times, the humanitarian dimension was tied to the saving of the ship. All ships were recognised as beneﬁciaries of the custom. Most of the recorded practice is with reference to commercial vessels. In general, and in peacetime, warships beneﬁt from the custom, albeit on tighter conditions than commercial vessels. Warships may beneﬁt from the custom in neutral waters during armed conﬂict. Distressed neutral vessels also beneﬁt if there is a blockade. It is probable that enemy merchant vessels do not beneﬁt from the custom. Fishing vessels beneﬁt from the custom, probably with some restrictions. There is little recorded practice in relation to recreational vessels, but there is nothing to suggest that these are not equally entitled to beneﬁt from the custom. There is no doubt that ships that provide assistance to ships in distress also beneﬁt from aspects of the custom, such as the innocent passage exception.

Protection of Property and Related Interests The modern contention that the refuge custom is no more than a duty to provide humanitarian assistance at sea, and can be discharged simply by airlifting

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the crew and abandoning the ship in distress is not supported by the historical evolution of the custom. On the contrary, there is signiﬁcant treaty evidence suggesting that the protection of the ship and cargo, i.e., property, is still part and parcel of the custom. This should not be surprising because the custom evolved as an integral part of the institutions of maritime trade. Salvage as an institution dedicated to the salving of property and the saving of life beneﬁted from the refuge custom, and indeed the regulation of salvage in general maritime law presupposes the availability of a place of safety for the salved res. As an institution dedicated to the saving of the property interests in the maritime adventure, the origins and doctrine of general average were also linked to the need of a ship to ﬁnd a place of refuge. The general average act, in terms of sacriﬁce by jettison at sea or the incurring of further costs in a port of refuge, was the action that could be taken on board the ship to save it and its cargo and still enable completion of the voyage. This was of course an action in self-interest rather than altruism. But the idea again was that those who made a ‘special effort’ (i.e., by incurring an extraordinary loss) to preserve the maritime interests of others, as well as theirs, were entitled to be compensated.

The Perils Posed by the Ship and Imposition of Conditions The ship that needs refuge is not necessarily always a ship in distress, but could be one that simply needs assistance or anticipates dangerous weather. Much of the attention has focused and continues to focus on ships in an actual state of distress as a result of force majeure. The ship seeking refuge may pose a threat to the place of refuge and its inhabitants, perhaps more in a contemporary context than at any other time in the past. It is not altogether clear from historic, as distinct from the recent practice since the 1970s, in what situations refuge was denied because of a perception by the coastal state that its interests were threatened. The historical practice shows that the right to refuge has frequently been subjected to conditions, even when port entry was permitted, and therefore it is not correct to conclude that the right is or was absolute. The practice of quarantine is a case in point because ships, whether in distress or otherwise, did not always enjoy freedom of movement in a port or coastal waters. European ports had experienced the devastations of successive waves of plague, possibly introduced by infested rats from on board ships. Many European ports introduced a mandatory quarantine period for ships from the East, and often the quarantine area was a segregated place in or near a harbour. During quarantine, a ship was not permitted to break bulk and its crew and passengers were not permitted to leave the quarantine area. A ship in distress perceived to pose such a public health threat would not have been treated any differently. This is interesting because quarantine requirements were precursors of the application of the principle of protection in more recent times.

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Treaties of friendship, commerce and navigation also conditioned the right. As seen in 20th century treaty practice, where a distressed ship posed a threat to the continued function of a port, local authorities reserved themselves the right and power to take whatever action was needed to remove the threat. Today similar considerations will be weighed in relation to ships that pose environmental and socio-economic threats. It is suggested that the imposition of conditions is not new; it is the type of conditions that may be imposed in response to the perceived threat that may be different. So in effect there is nothing new about the application of the protective principle in relation to ships in distress. Coastal states have fundamental rights and obligations for the protection of the marine environment that will inﬂuence their decisions. The denial of refuge or, when refuge is permitted, the imposition of conditions on environmental grounds can be expected.

Notiﬁcation and Consent Although it is probable that notiﬁcation and consent are required today, this was not the case for a long period of time. Historically, there was no requirement to notify coastal authorities and seek their consent, except when the ship was a warship. Today, notiﬁcation is required by most states and speciﬁc ports for all ships, let alone ships in distress, and mainly because of trafﬁc management, berth allocation and security reasons. At some point, the requirement that once the ship entered the place of refuge the master would report to a local authority developed. The notiﬁcation requirement may have been introduced with the installation of wireless on board ships, at least for those vessels that carried it. It is clear from modern state practice that states can, and sometimes do, deny the request upon notiﬁcation. However, it is probably the case that insofar as innocent passage is concerned, the coastal state does not have the right to deny passage to a ship in distress, although it can suspend it. In relation to international straits, it has neither the right to deny nor to suspend transit passage. Insofar as entrance into a port or internal waters is concerned, the contemporary practice is divided. As seen, the traditional rule is that there is no automatic customary right to enter a port, unless granted by a treaty. However, the refuge custom was always seen as an exception. Except where denial is justiﬁed by the need to protect legitimate coastal state interests, there is probably a need for more state practice before it can be determined that the exception, which historically compelled consent, is no longer good law.

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Decision-making by Coastal Authorities Historically, the custom never provided any procedural requirements. At the most, coastal state authorities had to consider the doctrine of abuse of rights. The internal decision-making process itself was not subject to any external scrutiny, other than purely domestic administrative law standards. Today it seems that EU Directive 2002/59/EC and the IMO Guidelines have introduced procedural expectations. For non-EU states, the IMO Guidelines are voluntary. As has been seen, EU Member States are required to take into account the IMO Guidelines in fulﬁlling their legal obligation to draw up plans for ships in distress. Thus, there is a requirement to have procedures in place, undertake a risk assessment process, conduct expert analysis and have an information system in place. From another perspective, and as noted earlier, the IMO Guidelines may also have had the effect of establishing a standard of due diligence in coastal state decision-making on granting or refusing a request to enter a place of refuge. If the Guidelines are widely accepted and implemented, one could be tempted to eventually consider them as a new dimension of the custom or soft law.

The Place of Refuge As seen, in earlier times, any close safe place was deemed to be a haven for a ship in distress and no formal permission to enter that place was expected or required. That haven was not necessarily a port, although much of the literature on the subject refers to a port of refuge. Very often it included rivers and inland waterways. Today there is uncertainty as to whether the duty to assist at customary law goes as far as to actually require the provision of a place of refuge. There is divergence in practice. Historically, it was unquestioned that a ship in distress was entitled to a place of refuge, as it was thought that by saving the ship one saved the crew and property interests. Today some governments and courts question the provision of a place of refuge as a necessary part of the duty to assist. Also, it will be recalled that the IMO Guidelines provide that the coastal state has no obligation to grant permission to enter a place of refuge. On the other hand, EU Directive 2002/59/EC requires EU Member States, while taking into account the IMO Guidelines, draw up plans to accommodate ships in distress to ensure their immediate movement to a place of refuge in their waters. Adopted by an IMO Assembly resolution, with a signiﬁcant number of Member States, the Guidelines carry some weight. But they are voluntary, and clearly for EU states they do not carry comparable weight as an EU directive in the Union. Also, some states may actually have a bilateral obligation to provide refuge in their agreements on friendship, commerce and navigation that are still in force. So at a minimum, there are many states that will have a legislative

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and/or treaty obligation to provide refuge to a ship in distress, and for those states their treaty obligation must supersede an understanding stemming from a voluntary instrument, should a conﬂict be perceived. However, this aspect is put to the test when a ship in distress is perceived as posing a real and grave environmental, economic or public safety threat, and in which case decisionmaking in self-defence is likely to take precedence. It is likely that on a global basis there will be different approaches to the issue of whether to provide a place of refuge. Where there is refuge practice, modern state practice seems to be moving in the direction of any one or more (in combination) of the following forms of conduct: (1) pre-designation of places of refuge that are made public, (2) pre-designation of places that are not made public, (3) the development of a policy that would consider any area as an eligible place of refuge on a case-by-case basis, and (4) application of the IMO Guidelines. At this time, there is not sufﬁcient evidence to indicate whether any one of the ﬁrst three approaches may constitute the dominant trend. It is likely that the fourth approach will accompany all of the ﬁrst three and will become a central feature of refuge practice. The regional trend in European states, perhaps more than in the case of other states, is towards the designation of places of refuge for ships in distress.

Type of Assistance to be Provided to the Ship in Distress, Privileges Extended and Related Conditions Historically, a number of consequences ﬂowed from entrance to a place of refuge because of (1) the ship might have needed assistance, (2) the place of refuge was an unscheduled stop, and (3) the ship unintentionally may have been in violation of local laws. It appears that many states continue to recognise these consequences and the harshness of denying special consideration. As seen, the coastal state has an active, rather than a passive duty to assist, not least because of SOLAS and SAR Convention requirements, but also out of the customary humanitarian obligation. There is a duty to assist and protect the crew and passengers. In several bilateral treaties and national legislation the duty to assist and protect extends to the ship and its cargo, whether still on board or which is separated from the wreck. National salvage and wreck law enables the coastal state to provide a legal environment to facilitate its duty to assist and protect. When the ship is allowed entry, it is normally permitted to undertake needed repairs, take on water and re-supply at market prices. Treaty law protected the ship in distress from commercial exploitation, and today provisions for equal treatment in trade law would provide some protection. The master could conceivably take on replacement crew as needed. Treaties of friendship, commerce and navigation frequently enable consular representation to assist such ships.

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If the place of refuge is not the intended end to the maritime adventure, it is recognised that the ship is not ‘importing’ goods into the country, and that therefore customs duties should not be applied as long as the cargo is not unloaded locally for marketing. Some treaties enable the master to sell some of the cargo without incurring customs charges. For unsold cargo, customs procedures may impose conditions on the cargo before the ship departs. Less clear today is the position of the crew that could well ﬁnd themselves in violation of local immigration law at the place of refuge. The US and EU legislation mentioned above are important also from another perspective. The US distress rule on notice of arrival is in the form of an exception, and this is consistent with the historical development of the custom by virtue of which ships in distress enjoyed certain exemptions. In the context of current trends in maritime security legislation, this exception is important. The EU instrument does not treat ships in distress as entitled to an exception, but rather reverses the burden onto the coastal state to actually accommodate such ships.

Reciprocity Much of the bilateral treaty practice implicitly recognised the reciprocal nature of the refuge custom. In treaties of friendship, commerce and navigation where the refuge custom is not stated, there is provision for similar treatment of foreign ships as national ships, and it is likely that this extends to assistance given to a ship in distress.

CONCLUSION This chapter has attempted to paint a broad-brush picture of a long-standing international custom. It has consciously not engaged in the doctrinal debate on custom, and focussed instead on the actual practise of the custom. This chapter should be considered as a ﬁrst step towards the study of the refuge custom and what value it might yield to doctrine. There are still historical gaps that need to be ﬁlled and a doctoral dissertation on the subject remains to be written. It is interesting to ponder upon the question as to why and how the refuge custom escaped codiﬁcation, considering the massive codiﬁcation efforts of the International Law Commission, various United Nations Conferences on the Law of the Sea and the international maritime legislative activity of IMO. Did its longevity render it uncontroversial for so long and to the point that there was no felt need for legal development? Was it the case that the custom had a sufﬁciently clear community purpose and needed no further clariﬁcation? Or was it that the relationship between the custom and treaty practice was

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sufﬁciently consistent that there was no need to legislate away any inconsistencies? In the view of this author, the custom has demonstrated durability, relevance and ﬂexibility – an ability to evolve. Clearly, if IMO Member States embraced CMI’s recommendation and decided for a new convention, it might have been an opportunity to codify the custom, or at least those aspects that would have secured the widest agreement. In deciding against a convention, states may have been more concerned in ensuring that existing conventions are more widely adhered to and effectively implemented. Lack of post-adoption follow-up by states is a continuing concern with international conventions. Member states placed their faith in a management, rather than a legislative response to the problem, i.e., by adopting the IMO Guidelines. But they have implicitly fuelled the customary law process. The customary law path has advantages and disadvantages. When unchallenged, long-standing practice is highly authoritative. Customary law is ﬂexible because it is responsive to changing needs as expressed by state practice. If the needs change, there can be a process of counter-practice that may lead to uncertainty for an indeﬁnite period of time. One of the difﬁculties in assessing the state of a custom at any particular moment in time is the nature of the customary law-making process itself. There is no deﬁnite beginning or end point. There are no criteria on sufﬁciency and longevity of contrary or inconsistent practice, accompanied by the requisite counter-opinio (the new seed, according to D’Amato), to indicate that there is a process of desuetude under way. Much state practice in customary law tends to be routine and low-key, frequently unreported. The critical mass and universality needed to substitute a new for an old rule are signiﬁcant. From the perspective of the material element of customary law, publicity of a particular denial raises an interesting question as to whether such an instance should be given equal or greater weight as an instance of state practice evidencing a change of course for the custom. The greatest challenge to the future of the refuge custom is the competing principle of protection, and any consequent precautionary action that might be taken. Although states will consider each individual case on its own merits, it is likely that a principle established in both conventional and customary law will override conﬂicting aspects of another principle established only in customary law. If it turns out that that an increased invocation of the protective principle increases uncertainty of the refuge custom, and assuming that the international community continues to recognise the value of the norm, then perhaps codiﬁcation may occur.

Chapter 9 Law of the Sea and International Environmental Law Considerations for Places of Refuge for Ships in Need of Assistance Aldo Chircop* INTRODUCTION The Guidelines on Places of Refuge for Ships in Need of Assistance (IMO Refuge Guidelines), adopted by the International Maritime Organization (IMO) in 2003, identify applicable multilateral instruments that ‘constitute, inter alia, the legal context within which coastal States and ships act in the envisaged circumstances’ of the Guidelines. These instruments are: United Nations Convention on the Law of the Sea (UNCLOS), in particular article 221 thereof; International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (the Intervention Convention), 1969, as amended;

* The author is grateful for research assistance from Cecilia Denne, Library Assistant at the World Maritime University, Malmö, Sweden.

231 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 231–269. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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Chapter 9 Protocol relating to Intervention on the High Seas in Cases of Pollution by substances other than Oil, 1973; International Convention for the Safety of Life at Sea, 1974 (SOLAS 1974), as amended, in particular chapter V thereof; International Convention on Salvage, 1989 (the Salvage Convention); International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 (the OPRC Convention); International Convention for the Prevention of Pollution from Ships, 1973, as modiﬁed by the Protocol of 1978 (MARPOL 73/78); International Convention on Maritime Search and Rescue, 1979 (SAR 1979), as amended; Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972; Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, 1971; Convention on Limitation of Liability for Maritime Claims (LLMC), 1976; International Convention on Civil Liability for Oil Pollution Damage (CLC), 1969; International Convention on Civil Liability for Oil Pollution Damage (CLC), 1992; International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND), 1992.1

For coastal states considering the applicable law governing their rights and obligations for the purpose of protecting and preserving the marine environment, this list is obviously incomplete, hence the ‘inter alia’ reference. The list refers only to instruments that are in force so that other potentially signiﬁcant instruments not yet in force are omitted.2 With the exception of the United Nations Convention on the Law of the Sea, 1982 (LOS Convention),3 the above are almost exclusively instruments of international maritime law. Nor is there

1 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2004, IMO Doc. A 23/Res.949, 5 March 2004 (hereafter IMO Refuge Guidelines), Appendix 1. 2 E.g., International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 3 May 1996 (not yet in force), 35 I.L.M. 1406; International Convention on Civil Liability for Bunker Oil Pollution Damage, London, 27 March 2001 (not yet in force), IMO Doc. LEG/CONF.12/19, 27 March 2001. 3 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982 (in force on 16 November 1994), UN/Doc. A/CONF.62/122, 7 October 1982 (hereafter LOS Convention).

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reference to any multilateral regional legal instruments in force that may have express provision on places of refuge.4 Several instruments in the above list (e.g., Salvage Convention and LLMC) concern private maritime law and may therefore regulate the rights and responsibilities of private actors, such as shipowners, charterers, insurers and salvors, more than those of states. From a contemporary international environmental law perspective, there are other relevant global instruments in force concerning marine environmental protection and conservation.5 Also to be considered are important principles of sustainable development considered authoritative norms of international law, such as the precautionary principle, which are increasingly ﬁnding their way into marine environmental law and policy instruments.6 Ships in need of assistance may pose various threats to the marine environment, possibly because of actual or potential leaks (or even intentional discharges) of cargo or unused bunkers, or from a range of toxic substances and materials on board. A ship can also cause physical damage to shoreline or seabed areas in the immediate vicinity of the ship, such as from anchoring and grounding. The ship in distress may pose risks to other ships or structures, for example through allision or collision. Also, a disabled ship may potentially disrupt other uses of the marine environment.

4 E.g., Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea, Malta, 25 January 2002 (in force on 17 March 2004), Art. 16, <www.unepmap.gr/Archivio/All_ Languages/WebDocs/BC&Protocols/Emergency02_eng.pdf>, 21 June 2005; Convention on the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, 9 April 1992 (in force on 17 January 2000), <www.helcom.ﬁ/stc/ﬁles/Convention/ Conv0704.pdf>, 1 August 2005 (hereafter Baltic Sea Convention), Annex IV, Reg. 12; Bonn Counter Pollution Manual (Chap. 26), adopted within the framework of the Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances, Bonn, 13 September 1983, (hereafter Bonn Agreement), <www.bonnagreement.org/eng/html/welcome.html>, 1 August 2005. 5 E.g., Convention on Wetlands of International Importance especially as Waterfowl Habitats, Ramsar, Iran, 2 February 1971 (in force on 21 December 1975), as amended by the Protocol of 3 December 1982 and the Amendments of 28 May1987, <www.ramsar.org/key_conv_e.htm>, 14 June 2005 (hereafter Ramsar Convention); Convention on Biological Diversity, Rio de Janeiro, June 5, 1992 (in force on 29 December 1993) (hereafter Biodiversity Convention), <www.biodiv.org/convention/articles.asp>, 11 April 2005. See also the Jakarta Mandate on Marine and Coastal Biological Diversity, adopted by COP Decision II/10 on Conservation and Sustainable Use of Marine and Coastal Biological Diversity (Jakarta), 1995, <www.biodiv.org/decisions/default.aspx? lg=0&m=cop-02&d=10>, 11 April 2005. 6 J. M. Van Dyke, “The Evolution and International Acceptance of the Precautionary Principle”, in: D. R. Caron and H. N. Scheiber, eds., Bringing New Law to Ocean Waters (Leiden, Nijhoff, 2004), 357–379, at 357.

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No one international convention addresses all relevant environmental legal issues on this subject. The most important instrument, the LOS Convention, does not address places of refuge for ships, although it does contain recognition that ships in distress enjoy an exception in the exercise of innocent or transit passage.7 Perhaps more far-reachingly for the purposes of this chapter, the LOS Convention provides a comprehensive framework for national maritime zones and marine environmental protection relevant for decision-making on places of refuge. The coastal state enjoys a range of environmental rights and responsibilities in its maritime zones, and these may be exercised over ships of foreign nationality. The state of nationality of those ships, i.e., the ﬂag state, also enjoys rights and responsibilities of a safety and environmental nature in relation to its ships. The provision or denial of refuge to a ship in distress touches upon a coastal state’s obligation to protect and preserve the marine environment. The discussion in this chapter is undertaken against the backdrop of the compromises reached during the Third United Nations Conference on the Law of the Sea (UNCLOS III) between 1973 and 1982, and in particular between the traditional right of international navigation (which today is expressed through the regimes of innocent passage, archipelagic sea lanes passage, transit passage and freedom of navigation) and the relatively more recent rights of coastal states to adjacent marine areas wherein they enjoy a range of exclusive and non-exclusive rights relevant for a discussion on assistance to ships in need of assistance and the provision of places of refuge when needed. In addition, over the last 20 years, numerous international environmental law conventions and other instruments have been adopted, many of which supplement and further develop the LOS Convention’s marine environmental framework. The purpose of this chapter is to provide a survey of actual or potential issues, frequently interrelated, in the current and emerging international law of the sea and marine environmental law that are relevant considerations for places of refuge for ships in need of assistance while constituting a threat to the marine environment. As this chapter forms part of a larger theme in this book, it avoids detailed discussion on the customary law of refuge for ships addressed in Chapter 8, salvage discussed in Chapter 9, and issues of liability and compensation considered in Chapters 11 and 12. The focus is on commercial vessels; because of their special status, consideration of government ships and warships is excluded.

7

LOS Convention, supra note 3, Arts. 18(2) and 39(1)(c).

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MARITIME ZONES AND NAVIGATION ISSUES The General Rule: Assistance to Ships in Distress There is a long-standing customary duty in the law of the sea, today also in conventional law, to assist ships in distress and their crews at sea, whether in national maritime zones or on the high seas.8 This duty is both for states and ships and their crews at sea, as long as this can be provided without serious danger to the ship and those on board. The LOS Convention requires states to legislate this duty.9 The Convention also provides an obligation for coastal states to ‘promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea . . .’ and to co-operate on a regional basis.10 This obligation is further developed in the International Convention on Maritime Search and Rescue, 1979 (SAR Convention), which provides more in-depth expectations for the adoption of legislative and other appropriate measures and their implementation.11 The obligation is to undertake a search and rescue service12 and rescue entails ‘an operation to retrieve persons in distress, provide for their initial medical or other needs, and deliver them to a place of safety’.13 The coastal state has an

8

Ibid., Art. 98 (referring to high seas, but includes the EEZ); International Convention for the Safety of Life at Sea, 1974, London, 1 November 1974 (in force on 25 May 1980), 1184 U.N.T.S. 2, as amended (hereafter SOLAS), Chap. V, Reg. 33 (generic reference to ‘at sea’; Chap. V, Reg. 7(1) includes seas around the costs of coastal states); International Convention on Maritime Search and Rescue, London, 27 April 1979 (in force on 22 June 1985), 405 U.N.T.S. 97, as amended (hereafter SAR Convention), Chap. 2, para. 2.1 (also refers to ‘at sea’ generally). The latter provision also states that ‘The notion of a person in distress at sea also includes persons in need of assistance who have found refuge on a coast in a remote location within an ocean area inaccessible to any rescue facility other than as provided for in the annex’. The duty to assist (for masters) was also provided in the Convention for the Uniﬁcation of Certain Rules of Law Relating to Assistance and Salvage at Sea, Brussels 23 September 1910, 103 U.K.F.S. 441, Art. 11. 9 LOS Convention, supra note 3, Art. 98(1). 10 Ibid., Art. 98(2). See also SOLAS, supra note 8, Chap. V, Reg. 7(1). 11 SAR Convention, supra note 8, Art. 1. 12 Deﬁned as ‘The performance of distress monitoring, communication, co-ordination and search and rescue functions, including provision of medical advice, initial medical assistance, or medical evacuation, through the use of public and private resources including co-operating aircraft, vessels and other craft and installations’. Ibid., Chap. 1, para.1.3.3. 13 Ibid., Chap. 1, para. 1.3.2.

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obligation to assist persons in distress, and this includes assistance to the ship as this may well result in the saving of persons on board.14 In deliberations on the IMO Refuge Guidelines, delegations were of the view that the SAR Convention does not require that states providing search and rescue assistance provide refuge for the ship itself. Nor does the International Convention on Salvage, 1989, actually stipulate a duty on coastal states to provide a place of refuge, but instead provides: ‘A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into account the need for co-operation between salvors, other interested parties and public authorities in order to ensure the efﬁcient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general’.15 Thus, while there is a duty for the coastal state to assist, it will contextualise the action that it might take in doing so within its rights and responsibilities in its maritime zones and the protection and preservation of the marine environment.

Passage to and Through Internal Waters Ships in need of assistance may need a place of refuge in sheltered waters. Frequently, such waters are likely to be in a port, bay or other area in such geographical proximity to the coast as to receive effective shelter. The waters enclosed by bay closing lines16 or straight baselines in the case of coastlines that are highly indented or cut into, or that are fringed by islands,17 have the status of internal waters.18 The signiﬁcance of this geographical fact is the jurisdictional implication. Internal waters are subject to the sovereignty of the coastal state are therefore subject to the totality of jurisdictions and powers that a coastal state may exercise over its land territory. Unlike the territorial sea, internal waters are not subject to the regime of innocent passage.19 The only exception to this rule concerns areas that were not considered internal waters prior to their enclosure by straight baselines (e.g., they were formerly consid14 The SAR Convention deﬁnes distress phase as ‘A situation wherein there is a reasonable certainty that a person, a vessel or other craft is threatened by grave and imminent danger and requires immediate assistance’. Ibid., para. 1.3.13. 15 International Convention on Salvage, London, 28 April 1989 (in force on 14 July 1996), U.K.T.S. 1996 No. 93, Art. 11. 16 LOS Convention, supra note 3, Art. 10. 17 Ibid., Art. 7. 18 Ibid., Arts. 8(1) and 10(4). 19 Internal waters are treated as land territory. The regime of innocent passage applies to the territorial sea as it is measured from the baselines (normal, straight or bay or closing line) and in a seaward direction up to 12 nautical miles.

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ered part of the territorial sea). In such cases, the right of innocent passage continues to exist in those areas of internal waters and the regime of innocent passage discussed below applies.20 As has been noted elsewhere in this book and in the literature, ships do not enjoy a right of entry into a port unless established by treaty.21 Port access is not governed by the conventional international law of the sea. Chapter 8 examined numerous treaties on friendship, commerce and navigation wherein such reciprocal right of port access is provided. Historically, such right was extended also to ships in distress. Unless established by treaty, port entry is simply a privilege that may be withdrawn at any time. Two other treaties address the regime of maritime ports and facilitation of maritime trafﬁc respectively, but neither stipulates a right of entry for ships in distress and both are silent on the passage of ships generally, let alone ships in distress, to or through internal waters.22 In effect, therefore, a coastal state has full sovereign authority to impose conditions on a ship in distress seeking a place of refuge in its internal waters or even when navigating through such waters. Treaties on friendship, commerce and navigation frequently contained express provision permitting the imposition of conditions. In the absence of a treaty, distress entry is governed by customary law, and as discussed in Chapter 8, the coastal state is not necessarily bound to consent to refuge, and when it does, its consent may be accompanied by conditions.

Innocent Passage Through the Territorial Sea The coastal state enjoys a territorial sea of up to 12 nautical miles from baselines delineated in accordance with the LOS Convention. As in the case of internal waters, it enjoys sovereignty over its territorial sea, but it is subject to the regime of innocent passage by international shipping, founded both in conventional and customary law.23 Innocent passage is akin to an international

20 LOS Convention, supra note 3, Art. 8(2). The same rule applies to internal waters in international straits which were not internal waters prior to the employment of the straight baseline system in accordance with Art. 7. Ibid., Art. 35(a). 21 See Chapters 6 and 8. See also A. V. Lowe, “The Right of Entry into Maritime Ports in International Law”, 14 San Diego Law Review, 1977, 597–622; E. Van Hooydonk, “The Obligation to Offer a Place of Refuge to a Ship in Distress”, Lloyd’s Maritime & Commercial Law Quarterly, August 2004 (Part 3), 347–374. 22 Convention on the International Regime of Maritime Ports, Geneva, 9 December 1923 (in force on 26 July 1926), 119 B.F.S.P. 568 (1924); Convention on the Facilitation of International Maritime Trafﬁc, London, 9 April 1965 (in force on 5 March 1967), 4 I.L.M. 501 (hereafter FAL). 23 Convention on the Territorial Sea and Contiguous Zone, Geneva, 29 April 1958

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servitude, a limitation on the otherwise exclusive right of use of such waters by the coastal state. However, and most importantly, the coastal state has a right to regulate innocent passage.24 For ships other than ships in distress, the passage must be continuous and expeditious during navigation through the territorial sea and navigation to enter or depart internal waters, a roadstead or port facility.25 Passage includes stopping and anchoring that may be incidental to the ordinary navigation of the ship. Most importantly for the purpose of this book, passage also includes stopping and anchoring (1) when rendered necessary by force majeure or distress, and (2) where assistance is offered to persons or ships in danger or in distress.26 This is an important exception to the requirements of continuity and expeditiousness, and has been legislated by several states.27 This ﬂexibility enables provision of assistance by other ships in the vicinity in accordance with their SOLAS duty to assist. Also, it provides the salvor with ﬂexibility to undertake whatever operations and movements are needed, including standing-by for additional assistance. There is a requirement that passage be innocent. Passage which prejudices the peace, good order and security of the coastal state is not innocent. From an environmental perspective, there are clear circumstances when passage is not considered innocent, such as when a ship engages in ‘any act of wilful and serious pollution’ or engages in ‘any ﬁshing activities’.28 These two instances concern intentional, not accidental environmental and/or resource offences. There is an important exception to banned intentional discharges of pollutants, which are permitted in certain situations by the International Convention for the Prevention of Pollution from Ships, 1973 and 1978 (MARPOL 73/78).29 Thus

(now superseded by the LOS Convention), 516 U.N.T.S. 206 (1964), Arts. 14–16; LOS Convention, supra note 3, Arts. 17–26. See also Corfu Channel Case (UK v. Albania) [1949], I.C.J. Reports 1949. 24 LOS Convention, supra note 3, Art. 17. 25 Ibid., Art.18(1). 26 Ibid., Art. 18(2). 27 On this point the author reaches a different conclusion from a recent report by the CMI, which stated that ‘there is a paucity of National legislation which relates to the provisions of . . . Articles 17, 18, 21 or 39(1)(c) of UNCLOS’. CMI Yearbook 2002, at 122. In Chapter 8, fn. 208, the author identiﬁes at least 19 states having legislation concerning one or more of these articles. 28 LOS Convention, supra note 3, Art. 19(2)(h) and (i). 29 International Convention for the Prevention of Pollution from Ships, London, 2 November 1973 (in force on 2 October 1983), 1340 U.N.T.S. 184, as amended by Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships of 1973, London, 17 February 1978 (in force on 2 October 1983), 1340 U.N.T.S. 61, as amended (hereafter MARPOL 73/78).

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the ‘discharge into the sea of oil or oily mixture necessary for the purpose of securing the safety of a ship or saving life at sea’ is an exception to the general rules on discharge prohibitions.30 Also an exception is the ‘discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment’, under certain conditions.31 In general, sovereignty entitles the coastal state to take legislative and enforcement action necessary to protect its interests and in conformity with international law. The limits on the exercise of its authority are in part set out in the LOS Convention. At the same time, its entitlement to exercise authority over international navigation in the territorial sea may also be supported by legal obligations undertaken under other legal instruments, such as conservation conventions discussed below. Thus, it may make laws and regulations, inter alia, for the purposes of safety of navigation and maritime trafﬁc, protection of navigation aids, facilities and installations, protection of cables and pipelines, conservation of living resources, and preservation of the marine environment and pollution prevention and control.32 Internally, the coastal state will legislate these rights and obligations, and in doing so may empower its maritime administration, and perhaps even port authorities, with the regulatory authority necessary to instruct a ship in distress to move to or from a speciﬁc area and take speciﬁed actions. There may be vital interests at a local level to be protected. However, the exercise of such authority (at whatever domestic level) over international navigation is not unfettered. The regulatory and enforcement action must be consistent with the LOS Convention and other rules of international law, in particular the IMO conventions. In particular ‘[S]uch laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules and standards’.33 Those laws and regulations must be given due publicity.34 There is a legal obligation on foreign ships to comply with the coastal state’s domestic laws and regulations and international collision avoidance regulations.35

30

MARPOL 73/78, ibid., Annex 1, Reg. 11(a). This exception is subject to the following provisos: ‘(i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the discharge; and (ii) except if the owner or the Master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result’; MARPOL 73/78, ibid., Annex 1, Reg. 11(b)(i) and (ii). 32 LOS Convention, supra note 3, Art. 21(1). 33 Ibid., Art. 21(2). 34 Ibid., Art. 21(3). 35 Ibid., Art. 21(4). 31

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Elsewhere, this author stated that the coastal state’s right to regulate can be very far-reaching, and yet still be consistent with international law.36 Thus while designating sea lanes and trafﬁc separation schemes, and through consultations with the IMO, the coastal state may require ‘tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials’ to conﬁne their passage to such sea lanes.37 Nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances have a duty to observe such requirements.38 The coastal state must not hamper innocent passage and cannot act arbitrarily or discriminate in regulating passage.39 Thus it cannot discriminate against an open registry state simply because of the ﬂag. After giving notice, it may suspend passage temporarily and in speciﬁed areas when this is essential for the protection of its security.40 It has to act consistently with international law and practices which may be developed periodically. In addition to publication of relevant laws and regulations, the duty to give publicity extends to any management requirements such as sea lanes and trafﬁc separation schemes. Dangers to navigation which the coastal state may be aware of have also to be given publicity, and this could well concern a vessel in distress that may pose risks to shipping in the area.41 This could include the designation of places of refuge and related regulatory requirements as a result of implementation of the IMO Refuge Guidelines, which clearly affect decision-making by the master and salvor that may be providing assistance to a ship.42 Where the coastal state permits refuge in its internal waters or at a port facility outside those waters, it has the authority necessary to take steps to prevent the infringement of any conditions it may subject its permission to.43

Archipelagic Waters and Archipelagic Sea Lanes Passage Archipelagic waters pose particular concerns for maritime administrations of archipelagic states and ships in need of assistance because while there are important international navigation routes through those waters, navigation

36

A. Chircop, “Ships in Distress, Environmental Threats to Coastal States, and Places of Refuge: New Directions for an Ancien Regime?”, 33(2) Ocean Development and International Law, 2002, 207–226. 37 LOS Convention, supra note 3, Art. 22. 38 Ibid., Art. 23. 39 Ibid., Art 24(1). 40 Ibid., Art. 25(3) 41 Ibid., Art. 24. 42 IMO Refuge Guidelines, supra note 1. 43 LOS Convention, supra note 3, Art. 25(2).

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tends to be close to coastal areas. Archipelagic waters are sea areas that become enclosed after the delineation of archipelagic baselines in accordance with the LOS Convention around the territory of states composed exclusively of islands.44 The two largest archipelagic states are Indonesia and the Philippines, and there are several international navigation routes through their archipelagic waters and numerous straits.45 As a result, some of the rules concerning transit through international straits also apply to archipelagic waters.46 Archipelagic waters tend to be areas vulnerable to shipping activities because unlike in the case of international navigation through the territorial sea and the exclusive economic zone (EEZ), shipping through archipelagic waters tends to occur in relatively narrow routes through coastal zones on either side of the passage and over long distances. A ship that experiences a distress situation similar to that of the ‘Erika’ or ‘Prestige’ might not be able to immediately steer towards open ocean, and probably not at any great distance from continuing regular trafﬁc. In the event of a casualty leading to an oil spill, the impact could affect and surround entire islands, and it is likely that sensitive tropical coastal systems, such as coral reefs and mangroves, will be adversely affected. In the archipelagic states mentioned, there are numerous small communities living on islands of various sizes that are dependent on those systems for their livelihood. Although also enclosed by straight lines joining the outermost points of the outermost islands and from which the breadth of the territorial sea and other maritime zones is measured,47 archipelagic waters have a different legal status from internal waters.48 Whereas the archipelagic state has sovereignty over archipelagic waters as another state would have over internal waters, there is a right of passage for international shipping through archipelagic waters.49 The

44

Ibid., Art. 46. Indonesia has recently designated and legislated a partial system of archipelagic sea lanes after consultation with the IMO/MSC 69th Session in 1998 (MSC.72(69)). See Indonesian Government Regulation No. 37, 2002, on the Rights and Obligations of Foreign Ships and Aircraft Exercising the Right of Archipelagic Sealanes Passage through Designated Archipelagic Sealanes, in IMO Doc. SN/Circ.200/Add.1, 3 July 2003. On the Philippines, see: J. Batongbacal, The Philippines’ Right to Designate Sea Lanes in its Archipelagic Waters Under International Law, Ocean Law and Policy Series, Vol. 1, (Quezon City, Philippines, U.P. Institute of International Legal Studies, 1997); J. Batongbacal, “Barely Skimming the Surface: Archipelagic Sea Lanes Navigation and the IMO”, in: D. Rothwell and A. O. Elferink, eds., Oceans Management in the 21st Century: Institutional Frameworks and Responses (The Hague, Kluwer, 2004), 49–68. 46 LOS Convention, supra note 3, Art. 54. 47 Ibid., Art. 47. The archipelagic baselines must be shown on charts of the geographical co-ordinates provided, and must be publicised. Ibid., Art 47(8) and (9). 48 Ibid., Art. 49. 49 Ibid., Arts. 52–54. 45

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reason for this is another compromise reﬂected in the LOS Convention between the traditional right of international navigation and the newly emergent right of archipelagic states to enclose such waters and consider them as sovereign territory. The waters of the international navigation routes before the advent of archipelagic waters status were considered territorial sea and therefore the long-established right of innocent passage would have applied. There is no right of international navigation in estuaries, bays and ports.50 Hence, the compromise consisted of continued application of the right of innocent passage, with some important modiﬁcations.51 Archipelagic sea lanes passage is deﬁned as ‘the exercise in accordance with this Convention of the rights of navigation and overﬂight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone’.52 The passage can be regulated much in the same way as passage through the territorial sea discussed earlier.53 In addition, through the IMO, archipelagic states may designate sea lanes and trafﬁc separation schemes for international navigation, 54 which ships must respect.55 The sea lanes, which include normal passage routes and navigation channels, must traverse archipelagic waters and adjacent territorial sea areas.56 There is no requirement for duplicate routes,57 although as a matter of good management, an archipelagic state might want to consider having alternate routes as substitutes, should there be a need to suspend navigation through the main route.58 Trafﬁc separation schemes for channels may be prescribed.59 There is a devia-

50

Ibid., Art 50, with reference to Arts. 9–11. Note that LOS Convention, ibid., Arts. 39, 40, 42 and 44 on international straits apply to archipelagic waters mutatis mutandis, as per Art. 54. 52 Ibid., Art. 53(3). 53 Ibid., Art. 52(1), which extends the application of the regime of innocent passage in Part II, Section 3, to archipelagic waters. Note that Art. 39 also applies to archipelagic waters. 54 Ibid., Art. 53(9). Proposals for sea lanes and trafﬁc separation schemes must be referred to IMO. Sea lanes and trafﬁc separation schemes may be adopted by IMO only after agreement with the archipelagic state, and thereafter the archipelagic state may implement them. They must be publicised by the archipelagic state, ibid., Art. 53 (10). There is also a requirement to publicise dangers to navigation, ibid., Art 54 as it extends application of Art. 44 to archipelagic waters. An archipelagic state may decide not to designate sea lanes and separation schemes, in which case the established normal routes through archipelagic waters would continue, ibid., Art. 53(12). 55 Ibid., Art. 53(11). 56 Ibid., Art. 53(4). 57 Ibid., Art. 53(4). 58 Ibid., Art. 53(7). 59 Ibid., Art 53(6). 51

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tion rule that could pose difﬁculties for archipelagic states. International navigation is not permitted to deviate more than 25 nautical miles from the sea lanes deﬁned as continuous axis lines, and as long as ships do not deviate more than 10 percent of the distance between the nearest points of land on either side.60 Although this rule was intended to provide some navigational ﬂexibility, from an archipelagic state’s perspective it might permit too much leeway in a trafﬁc management system in narrow geographical areas, and possibly navigation which is too close to the coast when precaution should dictate greater distance. For example, a ship under towage should be kept at a safe distance from the coast. From the perspective of a ship in a state of force majeure, the deviation rule might permit stopping and anchoring in more sheltered waters closer to the coast. This enables these states to promote navigation safety while containing potentially adverse impact on their coastal zones. Importantly, the right of innocent passage may be suspended in speciﬁed areas, but only temporarily (with no particular time restriction) if this is essential for the protection of the archipelagic state’s security. There is a duty to announce the suspension before it takes place, but the LOS Convention does not provide a minimum advance notice. In a modern context, it might be possible to interpret security as more than military security. After all, because the regime of innocent passage applies in archipelagic waters, the force majeure exception discussed in relation to the territorial sea applies.61 Thus a ship in distress during archipelagic sea lanes passage may stop, anchor and receive assistance from salvage or other vessels, and this could pose a safety concern. In an extreme situation where the ship in distress threatens to become or becomes a casualty, endangering coastal environmental and socio-economic security, as well as safety of international navigation while salvage or response operations are under way, a prudent archipelagic state may have no choice but to suspend passage in the affected area until the threat is removed. In such situations, the notice may have to be very short indeed.

60

Ibid., Art. 53(5). The 10 percent rule refers to the nearest points on islands bordering the lane, but not to any other geographical features such as coral reefs and sand bars and rocks that are not islands. Art. 121 deﬁnes island as “a naturally formed area of land, surrounded by water, which is above water at high tide.” Clearly, despite the text in Art 53(5), common sense dictates that coral reefs and sand bars have to be taken into consideration. 61 By virtue of LOS Convention Art. 54, ibid., the Art. 39(1)(c) force majeure rule as it applies to international straits is in principle applicable to archipelagic waters. But see the discussion on international straits, where inconsistencies are pointed out between Arts. 18(2) and 39(1)(c).

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Transit Passage Through International Straits The situation of ships in distress and places of refuge in straits used for international navigation is more complex. UNCLOS III negotiators developed a special regime for geographical areas considered as choke points, frequently located in territorial seas, and through which they wanted to ensure that international navigation would always occur.62 Perhaps nowhere as much as in Part III concerning straits used for international navigation is there such a sensitive balancing act between the freedom of navigation and coastal state authority. Negotiators restricted the powers of the coastal state in such straits insofar as international navigation is concerned through the adoption of the regime of transit passage.63 International shipping enjoys a right of transit passage through international straits.64 Transit passage is deﬁned as ‘the freedom of navigation and overﬂight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone’ (emphasis added).65 In comparison, the LOS Convention does not deﬁne passage as freedom of navigation in relation to the rights of innocent passage and archipelagic sea lanes passage; instead the reference is simply to navigation through the territorial sea and the exercise of the rights of navigation and overﬂight through archipelagic waters.66 A consistent message is conveyed, clearly tying the hands of states bordering straits: the right of transit passage ‘shall not be impeded’; laws and regulations must not have ‘the practical effect of denying, hampering or impairing the right’; they ‘shall not hamper transit passage’.67

62

Not all international straits are affected. For example, where passage through a strait is governed by an international convention, it is not affected by Part III. Ibid., Art. 35(c ). The Turkish Straits are such an example as they are governed by the Convention regarding the Regime of the Turkish Straits, Montreux, 20 July 1936 (in force on 9 November 1936), A.T.S., No. 13 (1936). Also, where in the strait concerned there is a route through high seas or an EEZ which is similarly convenient, Part III does not apply, but obviously the freedom of navigation would apply. This is because the strait is sufﬁciently wide as to permit this, ibid., Art. 36. Again in the case of an island in the strait, transit passage does not apply if there is another convenient route seaward of the island. LOS Convention, ibid., Art. 38(1). 63 LOS Convention, ibid., Art. 34. Although coastal state sovereignty and jurisdiction are retained, those powers are exercised subject to the rules of Part III and other rules of international law. 64 Ibid., Art. 38(1). 65 Ibid., Art. 38(2). 66 Ibid., Arts. 18(1) and 53(3). 67 Ibid., Arts. 38(1), 42(2) and 44.

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As in the case of the territorial sea and archipelagic waters, the coastal (strait) state may designate sea lanes and trafﬁc separation schemes through the IMO procedure.68 They may also regulate transit passage, but the subjects for regulation are fewer than those applicable for the territorial sea generally.69 There are the same duties of non-discrimination70 and publicity.71 Perhaps the most signiﬁcant restriction on the coastal state is that transit passage, unlike normal innocent passage and archipelagic sea lanes passage, cannot be suspended.72 The importance of international navigation through straits is further highlighted by reference to some straits to which Part III does not apply. Although transit passage may not apply to these straits, innocent passage still applies and cannot be suspended.73 Against this backdrop there are signiﬁcant issues to consider for ships in distress. Ships transiting straits have similar duties as those exercising innocent passage. Inter alia, they have to proceed without delay and ‘refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress’.74 There are textual differences between the force majeure rule here and in the case of innocent passage. It will be recalled from above that in the context of innocent passage, the rule is formulated with reference to stopping and anchoring for the beneﬁt of the ship in distress, but also includes ships that may be providing assistance. The text of the force majeure rule in transit passage appears more ﬂexible in not constraining any activities by the ship in distress or any other ship in the vicinity, so long as they are necessary. Perhaps in practise the difference will appear more textual than substantive. Also of potential signiﬁcance is the duty of ships transiting international straits to ‘comply with generally accepted international regulations, procedures and practices for safety of life at sea’, and it is plausible to argue that the IMO Refuge Guidelines constitute a relevant set of procedures.75 The coastal state may regulate in the interests of navigation safety, but it may not deny, hamper or impair the passage of a ship in need of assistance, e.g., one being assisted by salvors. While respecting the intention of the UNCLOS III negotiators to protect freedom of navigation through straits, one should be wary

68

Ibid., Art. 41. Ibid., Art. 42(1), as compared to Art. 21(1). 70 Ibid., Art. 42(2). 71 Ibid., Arts. 41(2) and (6), 42(3) and 44. 72 Ibid., Art. 44. 73 Ibid., Art. 45. 74 Ibid., Art. 39(1). 75 Ibid., Art. 39(2)(a). They also have the duty to ‘comply with generally accepted international regulations, procedures and practises for the prevention, reduction and control of pollution from ships’. Ibid., Art. 39(2)(b). 69

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of applying too restrictive an interpretation that might not permit the coastal state to intervene to prevent a casualty from harming vital interests. It is possible to argue that international straits are not exempted from the right of protection of the coastal state under general international law and the precautionary principle under international environmental law apply.76 There is nothing that prevents a coastal state from designating a place of refuge in or near the strait, if navigation safety is not impaired. It can do so on its own or in agreement with strait user states.77

Ships in Distress in the Contiguous Zone The LOS Convention permits coastal states to claim a contiguous zone of up to 24 nautical miles from the baselines of the territorial sea. In effect, the area of contiguous zone concern is the 12-nautical mile area beyond the territorial sea. The zone confers limited jurisdiction to prevent and enforce infringements to customs, ﬁscal, immigration or health laws of the coastal state.78 Historically, as seen in Chapter 8, coastal states harbouring ships in distress conferred customs exemptions in the case of distress entries as long as the cargo was not unloaded, or if it had to be temporarily unloaded, it was not for the purposes of local consumption. However, if part of the cargo was sold to help defray expenses for the continuation of the maritime adventure, customs dues were payable on the ‘imported’ cargo. The privilege stemmed from the involuntary nature of the distress entry. This eventuality is still conceivable today in the contiguous zone, where a salvor may recommend the temporary unloading of an oily cargo to lighten the ship to prevent or minimise pollution. Technically, the coastal state has customs as well as environmental jurisdiction over such an operation, and the extent to which it will waive any applicable customs rules during cargo transfer depends on its readiness to extend the customary privilege to the ship in distress.

76 Ibid., Art. 34(2) status that ‘The sovereignty or jurisdiction of Status bordering the straits is exercised subject to this Part and to other rules of international law’. The latter could refer to the principle of protection and the precautionary principle. 77 The following generic text seems to support this possibility: ‘User States and States bordering a strait should by agreement co-operate: (a) in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation; and (b) for the prevention, reduction and control of pollution from ships’. Ibid., Art. 43. ‘Other improvements’ in (a) is sufﬁciently generic to encompass co-operation on designation of a place of refuge. Under (b) the coastal and ﬂag state could co-operate in providing assistance to ships in distress. 78 Ibid., Art. 33.

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Freedom of Navigation in the EEZ The EEZ is a zone of 200 nautical miles breadth wherein the coastal state enjoys exclusive sovereign rights of exploration and exploitation of ocean resources.79 It is also a zone in which the freedom of navigation has been preserved. 80 This was yet another compromise in relation to large ocean areas that were formerly high seas, and thus were subject to the freedom of the seas, and which had become subject to national jurisdiction. Although in the EEZ the traditional freedom of ﬁshing disappeared and freedom of marine scientiﬁc research was severely curtailed, the freedom of navigation and overﬂight, among others, survived as part of the compromise.81 Of special importance to ships in distress is the jurisdiction enjoyed by the EEZ state for the protection and preservation of the marine environment.82 There is more to be said on this jurisdiction in the discussion on marine environment protection below. The freedom of navigation in the EEZ includes other related and internationally lawful marine uses ‘such as those associated with the operation of ships’.83Again the provision of assistance to a ship in distress in the EEZ is an international lawful marine use, and as has been seen, a legal duty under SOLAS. The exercise of the freedom of navigation in this context is not unfettered. There must be due regard to the rights and duties of the coastal state itself, which may have legislation for the protection and preservation of the marine environment consistently with the LOS Convention.84 A potentially difﬁcult situation is when a ship in distress on the high seas posing a potential pollution risk is not permitted entry into the EEZ. Canada faced this situation in 2000 in the case of the ‘Eastern Power’, a 24-year old-tanker with a fractured hulled that was leaking oil off Newfoundland in the northwest Atlantic.85 Initially Canada barred EEZ entry fearing that a large spill would adversely affect ﬁsh stocks, but permission was eventually granted after the crew shifted cargo from the leaking tank elsewhere.86 This action was justiﬁed on the basis

79 80 81

Ibid., Art. 56(1). Ibid., Art. 58(1). Other freedoms that survived include the laying of submarine cables and pipelines.

Ibid. 82

Ibid., Art. 56(1)(b)(iii). Ibid., Art 58(1). 84 Ibid., Art. 58(3). 85 See: “Canada bars entry to crippled ship of fuel”, CBC News Report, 8 December 2000, <www.cbc.ca/story/news/?/news/2000/12/08/oil_tanker001208>, 20 June 2005. 86 “Canada to let leaking oil tanker dock in Newfoundland”, CBC News Report, 9 December 2000, , 20 June 2005. 83

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of the perceived threat to coastal state interests, which include ﬁshing.87 This right is discussed further below.

MARINE ENVIRONMENT PROTECTION General Obligation of Marine Environment Protection and Precaution State parties to the LOS Convention have a fundamental legal obligation to protect and preserve the marine environment at both global and regional levels.88 This includes an obligation to harmonise their policies and to take individual or collective measures to prevent, reduce and control pollution.89 In a contemporary context, the performance of that fundamental obligation should be guided by the observance and application of principles of sustainable development.90 Among these, the precautionary principle stands out as a modern norm of international law. It developed after the adoption of the LOS Convention and is reiterated by an increasing number of international conventions and cases.91 The 1992 Rio Declaration on Environment and Development

87

LOS Convention, supra note 3, Art. 221. Ibid., Art. 192. The performance of this obligation is further developed through a multilateral obligation to ‘co-operate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practises and procedures’, ibid., Art. 197. 89 Ibid., Art.194(1). 90 Set out primarily in the Rio Declaration on Environment and Development, adopted at the United Nations Conference on Environment and Development, Rio de Janeiro, 3–14 June 1992, <ﬂetcher.tufts.edu/multi/texts/RIO-DECL.txt>, 29 July 2005 (hereafter Rio Declaration). Principles of particular relevance for this chapter are: Principle 2 – sovereign right of resource utilisation and to ensure that activities within their jurisdiction and control do not cause transboundary damage; Principle 4 – environment protection should be considered an integral part of development planning; Principle 7 – international co-operation in planetary ecosystem conservation; Principle 9 – capacity-building and technology transfer; Principle 10 – public participation in decision-making processes, effective environmental legislation; Principle 13 – liability and compensation for environmental damage; Principle 14 – non-relocation of activities and substances; Principle 15 – precaution; Principle 16 – polluter pays; Principle 17 – environmental impact assessment; and Principles 18 and 19 – notiﬁcation of other states in cases of emergencies and transboundary impacts. Agenda 21, Chapter 17 (Coasts and Oceans) articulates some of the principles in the coastal and marine environmental context. 91 For a survey of the international instruments, cases and state practice in support of this view, see Van Dyke, supra note 6, 360–377. 88

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states the principle as follows: ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientiﬁc certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’.92 According to Bodansky, the principle has at least three different legal functions in various legal instruments, in terms of providing (a) a reason for not postponing action (but without afﬁrming a duty to take action), (b) a license to act (i.e., the taking of environmental measures), and (c ) a duty to act (i.e., to prevent and abate, and possibly adopt the best available technology).93 In prescribing that environmental action should not be postponed because of the scientiﬁc uncertainty, the Rio Declaration formulation is consistent with (a).94 Although the precautionary principle could be helpful to coastal authorities making decisions on places of refuge in general or responding to speciﬁc requests, there is some uncertainty as to its precise content when it is not stated in a speciﬁc instrument.95 In particular, it is not necessarily obvious as to what type of action constitutes a precautionary approach in general. Bodansky suggests four types of action as substantive elements of the approach, namely preventive action, shifting the burden of proof, uses of best available technology and cost-effectiveness.96 Accordingly, for a maritime administrator, the principle is useful to guide the development of a places of refuge policy, including associated contingency planning. A logical necessity for the application is the

92

Rio Declaration, supra note 90, Principle 15. D. Bodansky, “Deconstructing the Precautionary Principle”, in: D. R. Caron and H. N. Scheiber, eds., Bringing New Law to Ocean Waters (Leiden, Nijhoff, 2004), 381–391, at 383–386. 94 Bodansky, ibid., at 383. 95 For additional literature on the status of the principle in environmental, health and related areas, see: E. Hey, “The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution”, 4 Georgetown International Environmental Law Review, 1992, 304; F. Cross, “Paradoxical Perils of the Precautionary Principle”, 53 Washington & Lee Law Review, 1996, 851; D. Freestone and E. Hey, eds., The Precautionary Principle and International Law: The Challenge of Implementation (The Hague, Kluwer Law, 1996); O. McIntyre and T. Mosedale, “The Precautionary Principle as a Norm of International Law”, 9 Journal of Environmental Law, 1997, 221; D. VanderZwaag, “The Precautionary Principle in Environmental Law and Policy: Elusive Rhetoric and First Embraces”, 8 Journal of Environmental Law & Practice, 1999, 355; P. H. Sand, “The Precautionary Principle: A European Perspective”, 6 Human & Ecological Risk Assessment, 2000, 448; C. D. Stone, “Is there a Precautionary Principle?”, 31 Environmental Law Reporter, 2001, 10790; A. Trouwborst, Evolution and Status of the Precautionary Principle in International Law (The Hague, Kluwer Law, 2002). 96 Bodansky, supra note 93, at 390–391. 93

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utilisation of an environmental impact assessment and adoption of preventive measures. The principle is also useful for the utilisation of the risk assessment process in support of coastal state decision-making, as advocated in the IMO Refuge Guidelines.

Vessel-Source Marine Pollution The LOS Convention provides a general normative framework for the adoption of international rules and standards through IMO to prevent, reduce and control pollution. The conventions listed in the IMO Refuge Guidelines set out at the beginning of this chapter are such examples, with MARPOL 73/78 providing the regulatory teeth for operational pollution, and OPRC and the Salvage Convention for accidental pollution. Flag states have a responsibility to ensure that their ships comply with vessel-source pollution requirements. For coastal states providing places of refuge, there is the general MARPOL 73/78 duty to provide reception facilities for different wastes, especially oily wastes.97 A practical problem with reception facilities is the shortage of these in many regions, including MARPOL 73/78 special areas, despite the legal obligation.98 Although all states have a duty to take measures to minimise both operational and accidental pollution,99 the coastal state has spatial, ecosystemic and user concerns to protect. Clearly, a coastal state has to ponder the risk of pollution when considering the granting of refuge to a ship in need of assistance in a situation of uncertainty. It has to protect and preserve the marine environment by preventing, reducing and controlling pollution from any source.100 Prevention and the application of ‘best practicable means at their disposal and in accordance with their capabilities’ can also be read as a basis for precaution.101 It cannot simply put its faith in the hope of full compensation for any damage suffered, which may have remedial value at best. Thus the location of a place of refuge needs to be considered with reference to coastal state interests and the needs of the ship, but also with reference to the 97 For interesting insights and recommendations in relation to ships in need of assistance see G. Timagenis, “Reception Facilities for Ships in Distress”, CMI Yearbook 2003, 470–478. 98 A. Chircop, “Particularly Sensitive Sea Areas and International Navigation Rights: Trends, Controversies and Emerging Issues”, in: I. Davies, ed., Issues in International Commercial Law (Aldershot, U.K., Ashgate Publishing, 2005), 217–243. 99 Speciﬁcally, ‘pollution from vessels, in particular measures for preventing accidents and dealing with emergencies, ensuring the safety of operations at sea, preventing intentional and unintentional discharges, and regulating the design, construction, equipment, operation and manning of vessels’. Ibid., Art. 194(3)(b). 100 LOS Convention, supra note 3, Art. 194(1). 101 Ibid.

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interests of other states that might be affected. Coastal states are required to take ‘all measures necessary to ensure that activities under their jurisdiction and control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond’ their maritime zones.102 By providing a place of refuge, a coastal state will be putting itself in the position of having jurisdiction, if not also control, especially where its coast guard intervenes or takes over as responder or on-scene commander. Although it may be acting to prevent (or for that matter, reduce or control) pollution, it must not act in such a way as ‘to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another’.103 For example, this could happen in two ways. A ship in distress may be refused refuge by a coastal state that might be in the best possible position to prevent, reduce or control the problem, and as a result its condition deteriorates to the extent that the ship becomes a casualty in a neighbouring EEZ. It could also happen in a situation where the casualty occurs at the place of refuge and the resulting spill is treated with dispersants or other techniques that affect fragile wildlife in the maritime zone of a neighbouring state. In the former there is transfer of a hazard, and in the latter one form of pollution may be transformed into another. Also, the coastal state must not take measures that unjustiﬁably interfere with the exercise of legitimate rights by other state parties.104 Such measures ‘include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’.105 Thus, as seen earlier in relation to the maritime zones, the basic principle is that while coastal states are empowered, and indeed have the duty to take protective measures against vessel-source pollution, they must do so in a manner that does not interfere unjustiﬁably with international navigation rights. In general, if there is to be interference in the maritime zones, it must be in accordance with international rules and standards as discussed above. The protective action must be consistent with international rules and standards adopted through IMO and may include routeing schemes to minimise threats to local interests.106 Because of wide global membership in IMO, the international community is able to screen such measures. Yet again, the LOS Convention managed to craft a delicate balance between coastal state interests and international navigation rights. Although MARPOL 73/78 was adopted prior to the

102 103 104 105 106

Ibid., Art. 194(2). Ibid., Art. 195. Ibid., Art. 194(4). Ibid., Art. 194(5). Ibid., Art. 211(1).

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LOS Convention, and amended several times since then, that balance has been maintained. The coastal state that feels that the general rules of the LOS Convention and MARPOL 73/78 are not sufﬁcient for the protection of a sensitive area has the possibility of submitting a proposal to IMO to designate the areas concerned as a particularly sensitive sea area (PSSA)107 and/or of adopting, with the prior approval of the IMO, special mandatory measures for the special areas concerned.108 Both procedures are exceptional, in that they enable the coastal state to adopt even higher standards than the general norm to protect sensitive areas from international shipping. Arguably, the coastal state may be in a position to avoid locating places of refuge in such sensitive areas or to direct ships in need of assistance from such areas. In reality, it may be difﬁcult to so proceed, especially where PSSAs encompass large marine areas, such as in the case of the recently approved Baltic PSSA.109 Even in the case of the Wadden Sea PSSA, Denmark felt that it still had to pre-designate a place of refuge.110 The protective value of PSSAs is probably more in relation to normal international shipping activities than to the exceptional situation of a ship in distress.

Intervention As a result of the ‘Torrey Canyon’ casualty in 1967, the coastal state acquired a right to intervene in relation to potential or actual shipping casualties when its vital interests are threatened in situations where, because of the ﬂag of the vessel or the location of the incident, it would not otherwise have jurisdiction to respond. This power was ﬁrst articulated in the International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (Intervention Convention) as follows: Parties may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related inter-

107 Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identiﬁcation and Designation of Particularly Sensitive Sea Areas, IMO Doc. A 22/Res. 927, 15 January 2002. The Guidelines have recently been revised by the MEPC and will be adopted by the IMO Assembly by the end of 2005. 108 LOS Convention, supra note 3, Art. 211(6). 109 Proposed in Designation of the Baltic Sea Area as a Particularly Sensitive Sea Area, Submitted by Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden, IMO/MEPC 51/8/1, 19 December 2003, approved in 2004. 110 Danish Places of Refuge Policy, infra note 147. See also Designation of the Wadden Sea as a Particularly Sensitive Sea Area, Submitted by Denmark, Germany and The Netherlands, IMO/MEPC 48/7/2, 28 June 2002.

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ests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences.111

The Intervention Convention was amended in 1973 to also include substances other than oil.112 Maritime casualty was deﬁned broadly to include ‘a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or cargo’.113 The affected interests are extensive.114 The relevance to this power for a coastal state considering its options in relation to a ship in distress should be obvious. But, this is an exceptional power for exceptional situations occurring beyond the territorial sea, requiring selfdefence measures, with the effect of intervening directly in relation to international shipping. When the Intervention Convention was adopted, it was clear that the right was an extraordinary power and that therefore it did not affect the freedom of navigation.115 There has to be an event, i.e., a casualty, as otherwise the intervention of the coastal state could constitute questionable interference with international navigation. ‘Acts related to such a casualty’ extended the possibilities of intervention to where, for example, the coastal state feels it ought to have a say in or direct salvage assistance. The right to intervene was re-articulated and further strengthened in the LOS Convention with subtle, but important additions: Nothing in this Part shall prejudice the right of states, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their

111

International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, London, 29 November 1969 (in force on 6 May 1975), 970 U.N.T.S. 211 (1975) (hereafter Intervention Convention), Art. 1. 112 1973 Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, London, 2 November 1973 (in force on 30 March 1983), A.T.S., No. 5 (1984). The list of substances was amended by MEPC resolutions), Res.MEPC.49(31), 4 July 1991 (in force on 24 July 1992), and Res.MEPC.72(38), 10 July 1996 (in force on 19 December 1997). 113 Intervention Convention, supra note 111, Art. II(1). 114 These are ‘interests of a coastal State directly affected or threatened by the maritime casualty, such as: (a) maritime coastal, port or estuarine activities, including ﬁsheries activities, constituting an essential means of livelihood of the persons concerned; (b) tourist attractions of the area concerned; (c) the health of the coastal population and the well-being of the area concerned, including conservation of living marine resources and of wildlife’. Ibid., Art. II(4). 115 Ibid., Preamble.

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The coastal state has discretion to act, and act means not only the taking of measures but also to enforce them, and the only limitations are reasonableness and proportionality. The opening clause is important because it refers to Part XII containing a wide range of marine environmental rights and responsibilities in the LOS Convention. In practice, in exercising this right, the coastal state may direct a ship in such circumstances to a place of refuge or away from sensitive areas, even though the casualty occurs on the high seas.

Dumping at Sea In rare situations, a state (whether it is providing refuge or not) may be faced with an exceptional situation that might engage, or disengage, the application of dumping at sea regulations. The dumping into the marine environment of and from ships is a source of marine pollution targeted by the LOS Convention117 and the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (London Convention),118 the 1996 Protocol to the London Convention (London Convention Protocol)119 which is not yet in force, and various regional instruments.120 The Protocol has been

116

LOS Convention, supra note 3, Art. 221. Ibid., Arts. 210 and 216. 118 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 29 December 1972 (in force on 30 August 1975), 1046 U.N.T.S. 120, as amended (hereafter London Convention). 119 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 7 November 1996 (not yet in force), (hereafter London Convention Protocol) <ﬂetcher.tufts.edu/multi/texts/dumping.txt>, 22 June 2005. 120 For example: Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), Paris, 22 September 1992 (in force on 25 March 1998), <www.ospar.org/eng/html/welcome.html>, 1 August 2005, Annex II; Baltic Sea Convention, supra note 4, Art. 11; Protocol for the Prevention and Elimination of Pollution in the Mediterranean Sea by Dumping from Ships and Aircraft, Barcelona, 16 February 1976 (in force on 12 February 1978), <www.unepmap.gr/Archivio/All_ Languages/WebDocs/BC&Protocols/dumping76_eng.pdf>, 1 August 2005. This protocol will be superseded by the following instrument when it comes into force: Protocol for the Prevention and Elimination of Pollution in the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea, Barcelona, 10 June 1995 (not yet in 117

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described as a total reformulation of the London Convention, grounding it on the precautionary principle.121 Under the London Convention, dumping was permitted unless the substance concerned was a prohibited substance. With the Protocol, the dumping of wastes is prohibited unless it is listed in an annex and certain requirements and procedures are followed. In relation to ships in distress, dumping occurs when a ship is forced to jettison cargo for urgent safety reasons or, in the worst case scenario, a ship is scuttled whether for safety reasons or because the ship ﬁnds no refuge and its loss is imminent. For example, the ‘Christos Bitas’ was scuttled in 1978 after refuge was refused by the United Kingdom and dumping concerns were considered.122 More recently in 2001, the ‘Bismihita’la’ and the ‘Ikan Tanda’ were scuttled outside 200 nautical miles off the coasts of Namibia and South Africa (Cape Town) respectively, after they were refused entry by the South African Maritime Safety Authority.123 Dumping includes ‘any deliberate disposal of wastes or other matter from vessels’, and ‘any deliberate disposal of vessels’ at sea.124 It does not include abandonment of vessels (qua ships), and therefore this is not governed by the London Convention, which is likely a potential gap in the current scheme of the convention and protocol.125 It does not include the disposal of wastes from ships as a result of normal operations, which is governed by MARPOL 73/78. The London Convention Protocol includes vessels in a list of wastes or other matter that may be considered for dumping.126 Recycling of ships on land is the

force) <www.unepmap.gr/Archivio/All_Languages/WebDocs/BC&Protocols/Dumping 95_eng.pdf>, 1 August 2005. 121 Van Dyke, supra note 6, 364–365. 122 R. B. Clarke, The Waters Around the British Isles: Their Conﬂicting Uses (Oxford, Clarendon, 1987), at 189. 123 See the results of a questionnaire administered by the Comité Maritime International in “Places of Refuge: Report of the CMI to the IMO”, CMI Yearbook 2002, at 23. 124 LOS Convention, supra note 3, Art. 5(a); London Convention, supra note 118, Art. III(1); London Convention Protocol, supra note 119, Art. 1(4.1 and 4.2). 125 In this regard, see Consideration of the Work Programmes of the Pertinent Bodies of ILO, IMO and the Conference of Parties to the Basel Convention on the Issue of Ship Recycling: Abandonment of Ships, Note by the IMO Secretariat, IMO. Doc. ILO/IMO/BC WG 1/2/2, 17 January 2005, para. 3. The IMO Secretariat went on to note that ‘The abandonment of a ship at sea, for the purpose of its disposal, (take the crew off and simply let go) constitutes an uncontrolled dumping operation and, therefore, should be considered a violation of the London Convention/Protocol and subject to enforcement procedures of relevant Parties following investigation’. Ibid., para. 13. The IMO Guidelines on Ship Recycling consider the abandonment of a ship at sea as uncontrolled dumping, infra note 162, para. 9.7.2. 126 London Convention Protocol, supra note 119, Annex 1, para. 1.4. The requirement

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most desirable option from a London Convention and Protocol perspective. A ship potentially carries a range of hazardous wastes whose impact on the marine environment and human health has to be assessed and which frequently have to be removed before a dumping permit is issued by a national licensing authority. London Convention parties adopted guidelines to assist states in the assessment of vessels for dumping purposes, which include steps for waste prevention audit, waste management options and best environmental practices.127 A state will have a speciﬁc marine area designated as the dump-site, which will not normally include internal waters (unless so permitted under national law) because the London Convention and London Dumping Protocol exclude dumping in internal waters in the deﬁnition of dumping at ‘sea’.128 In addition to biophysical and ecological considerations, there are likely to be other important amenities and marine uses to be considered.129 The London Convention foresees emergency situations where it might not be possible to obtain the normal dumping permit for a ship and wastes on board, when it is necessary to secure the safety of human life or of vessels . . . at sea in cases of force majeure caused by stress of weather, or in any case which constitutes a danger to human life or a real threat to vessels . . . if dumping appears to be the only way of averting the threat and if there is every probability that the damage consequent upon such dumping will be less than would otherwise occur. Such dumping shall be so conducted as to minimize the likelihood of damage to human or marine life and shall be reported forthwith to the Organization.130

The London Convention Protocol contains a similar provision, but with some important differences.131 An ad hoc working group established by a

here is that ‘material capable of creating ﬂoating debris or otherwise contributing to pollution of the marine environment has been removed to the maximum extent and provided that the material dumped poses no serious obstacle to ﬁshing or navigation’. Ibid., para. 2. Radioactive material is restricted even further. Ibid., para. 3. 127 Speciﬁc Guidelines for Assessment of Vessels, adopted by the Nineteenth Consultative Meeting of Contracting Parties to the London Convention 1972, in 2000 (hereafter Speciﬁc Guidelines), <www.londonconvention.org/documents/guidelines/ 4%20-%20Vessels.pdf>, 1 August 2005. 128 London Convention, supra note 118, Art. III(3); London Convention Protocol, supra note 119, Art. 1(7). 129 See for instance the list in para. 6.4. in the Speciﬁc Guidelines, supra note 127. 130 London Convention, supra note 118, Art. V(1). 131 London Convention Protocol, supra note 119, Art. 8(1). Whereas the London Convention provision provides a general exclusion of the application of Art. IV (which includes Annex 1 containing a list of prohibited wastes), the London Convention Protocol provides a general exclusion, but does not prevent a state party to prohibit the dumping of Annex 1 wastes (wastes or other matter that may be considered for dumping and which includes vessels) insofar as it is concerned. Another difference is that the London Convention Protocol includes reference to incineration (ibid., Art. 5).

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Consultative Meeting of Contracting Parties to the London Convention has produced draft procedures and criteria to address such emergencies.132 The situations envisaged are when a ship master notiﬁes a local authority of an occurrence before dumping takes place, and the second is an after-the-fact report by the master to the local authority.133 In effect, with the exception of London Convention Annex 1 prohibited wastes, the general permitting requirements are waived and the only obligation that remains for the state concerned is to provide a report to IMO.134 When Annex 1 wastes are concerned, the state concerned has the discretion to issue a special permit as an exception to the annex.135 It is expected that the state concerned will investigate the situation to determine the extent of the risk posed by the emergency to human health, safety and the environment, and any alternative disposal options.136 In the eventuality that dumping at sea is necessary, there is a duty to consult other states (possibly including other states under a regional agreement) that are likely to be affected and IMO, and that state can expect prompt recommendations on appropriate procedures, which are to be followed and reported upon.137 However, the state issuing the permit under emergency conditions, where time is of the essence, may follow those recommendations to the extent it is feasible to do so in the circumstances.138 In general, the same permitting option in emergencies applies in the London Convention Protocol, but with reference to an Annex 1 that concerns wastes or other matter that may be considered for dumping and the related Annex 2 assessment of those wastes.139

132 “Draft Procedures and Criteria for Determining and Addressing Emergency Situations as Referred to in Articles 8 and 18.1.6 of the 1996 Protocol”, in Report of the Twenty-Sixth Consultative Meeting, IMO Doc. LC 26/15, 17 December 2004, Annex 5 (hereafter Draft Procedures). The Consultative Meeting approved the document and passed it on to the IMO’s Maritime Safety Committee for its consideration, before a further review at its Twenty-Seventh Session, ibid., at 15. 133 Ibid., para. 2.2. 134 For a list of contents of the report in relation to the London Convention Protocol requirement, see Ibid., para. 2.3. 135 London Convention, supra note 118, Art. V(2). This permitting right applies as long as the state concerned did not waive it at the time it became a party, ibid., Art. V(3). London Convention Protocol Art. 8(3) is similar. The assumption in this scenario is that there is likely to be more time available for consultation. Draft Procedures, supra note 132, para. 3.1. 136 Draft Procedures, ibid., para. 3.2.1. 137 See the Draft Procedures for the sequence of events in the consultation process, ibid., paras. 3.2.2–4, 3.3, 4.2 and Parts 5 and 7. 138 London Convention, supra note 118, Art, V(2). The expected action from the concerned state is spelled out in the Draft Procedures, supra note 132, Part 4. 139 London Convention Protocol, supra note 119, Art. 8(2). State parties also pledged to assist each other in such emergencies.

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What should guide the permitting state are the interrelated goals of marine environment protection, human health and safety, which should be pursued on the basis of the precautionary principle. When the London Convention Protocol comes into force, state parties will be required, under conventional law, to apply the precautionary approach and take into account that in principle the polluter should bear pollution costs.140 The latter is signiﬁcant for protection and indemnity coverage discussed in Chapter 12. Other than limits imposed by international law, there is nothing that prevents states from taking more stringent anti-pollution measures, but in any case there will be a duty ‘not to transfer, directly or indirectly, damage or likelihood of damage from one part of the environment to another’.141

Wreck Removal Wreck removal is another potential concern for a state granting refuge to a ship in distress. In the eventuality that the ship becomes a wreck, especially in conﬁned harbour areas or in areas subject to other marine uses or environmentally sensitive areas, the coastal state will be particularly anxious to remove the problem. Salvage plays a role and this is discussed in Chapter 10. Also relevant is P&I cover for the shipowner’s liability, and this has likewise been addressed in Chapter 12. What remains to consider is current legal development effort in the IMO on wreck removal (see Chapters 10, 11 and 12). The IMO Legal Committee is currently negotiating the Draft Wreck Removal Convention to deal with the navigational safety and environment protection concerns of wrecks and drifting or sunken cargo in the EEZ outside the territorial sea.142 Wreck is a sunken or stranded ship and any part thereof following upon a maritime casualty. It also includes ‘a ship that is about, or may reasonably be expected, to sink or to strand, where an act or activity to assist the ship or any property in danger is not already underway’.143 Maritime casualty is deﬁned as ‘a collision of ships, stranding or other incident of navigation or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or its cargo’.144 The convention would also apply when a ship, following a maritime casualty, is abandoned or left derelict. Under the convention, states and shipowners will

140

Ibid., Art. 3(1) and (2). Ibid., Art. 3(3). 142 Draft Convention on Wreck Removal, Submitted by The Netherlands, IMO Doc. LEG 90/5, 2 February 2005 (hereafter DCWR), Annex 1. 143 Ibid., Art. 1(4). 144 Ibid. 1(3). 141

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have new rights and responsibilities in this regard. For the affected coastal state faced with the spectre of a ship becoming a wreck in the place of refuge, it will have an international legal right to demand its removal and set conditions in the interests of safety and the environment, and if it is not removed, the affected coastal state may remove the wreck itself at the cost of the shipowner.145 The Draft Convention proposes to introduce direct access to insurers for wreck removal costs.146

Marine Conservation Although not immediately of obvious relevance to maritime administrations considering the subject of places of refuge for ships in need of assistance, states have conservation responsibilities to consider in designating places of refuge that could have an impact on a local ecosystem or species. Chapter 3 discussed the relevance of integrated coastal and ocean management as context for the places of refuge discourse, and that topic will not be repeated here. Ironically, the coastal zone is also refuge for marine wildlife, avifauna and other animals, and consequently their habitats need to be protected when the designation of places of refuge for ships potentially conﬂict with those needs. For example, in considering options for places of refuge recently Denmark took into consideration the location of conservation areas and the relative distance of the place of refuge from such areas.147 Under the Convention on Biological Diversity, 1992, states have responsibilities for the protection and conservation of biological diversity at the ecosystemic, species and genetic levels.148 They have a duty to implement the convention with respect to the marine environment consistently with law of the sea rights and obligations.149 A law of the sea obligation in this regard is the taking of measures ‘necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life’.150 There is an expectation of integration of biological diversity conservation with relevant sectoral plans.151 Thus, a national policy on places of refuge and the designation of particular places of refuge, have to be

145

Ibid., Art. 10. Ibid., Art. 13(11). 147 “Nødområder for skibe udpeget”, Pressemeddelelse, Miljøministeriet, Danmark, 4 februar 2004 (hereafter Danish Places of Refuge Policy). 148 Biodiversity Convention, supra note 5. 149 Ibid., Art. 22(2). 150 LOS Convention, supra note 3, Art. 194(5). 151 Biodiversity Convention, supra note 5, Art. 6(b). 146

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consistent with conservation responsibilities, and for this purpose, there is an argument to be made that an environmental impact assessment process may be appropriate, particularly for pre-designated places of refuge.152 The conservation obligation applies not only to biodiversity in national maritime zones, but also to the effects of activities under their jurisdiction and control extending beyond their jurisdiction. Thus the duty to notify and the sic utere tuo principle apply even in relation to the preservation of biological diversity.153 More speciﬁc to places of refuge at or in the vicinity of wetlands, maritime administrators have to consider any obligations undertaken under the Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 1971 (Ramsar Convention).154 State parties are required to designate suitable wetlands, with speciﬁed boundaries, within their territory for inclusion into the List of Wetlands of International Importance (Ramsar sites) established by the convention.155 Ramsar sites are selected on the basis of their international scientiﬁc signiﬁcance.156 Once designated, state parties ‘shall formulate and implement their planning so as to promote the conservation of the wetlands included in the List, and as far as possible the wise use of wetlands in their territory’, including the establishment of nature reserves.157 In effect, when planning for places of refuge for ships, the existence of a Ramsar site ought to inﬂuence location.158 Other conservation responsibilities stemming from other international environmental instruments may be invoked, but in essence the same point on the integrated approach is reinforced, i.e., that the existence of areas entitled to conservation should be considered by the coastal state designating places of refuge.159

152

Ibid., Art. 14. Ibid., Arts. 3 and 14(d). 154 Ramsar Convention, supra note 5. 155 Ibid., Art. 2(1). Wetlands are deﬁned as ‘areas of marsh, fen, peatland or water, whether natural or artiﬁcial, permanent or temporary, with water that is static or ﬂowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres’. Ibid., Art. 1. 156 Ibid., Art. 2(2). 157 Ibid., Arts. 3(1) and 4(1). 158 Should it be necessary to change the boundaries of a Ramsar site, state parties should compensate such a loss by creating additional nature reserves and for the protection of an adequate area of the original habitat. Ibid., Art. 4(2). 159 E.g., World Charter for Nature, 1982, United Nations General Assembly Resolution 37/7, <ﬂetcher.tufts.edu/multi/texts/UNGARES37-7.txt>, 1 August 2005; Convention Concerning the Protection of the World Cultural and Natural Heritage, Paris, 23 November 1972 (17 December 1975), <whc.unesco.org/world_he.htm>, 1 August 2005; Convention on the Conservation of Migratory Species of Wild Animals, 153

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TRANSBOUNDARY MOVEMENT OF HAZARDOUS WASTES Occasionally, a port may have to deal with a situation of a ship which has been abandoned within its limits, possibly because the ship is a constructive total loss, or is in a bad state of repair, or is detained for safety reasons by a port state control inspector. A ship may also become waste in a national maritime zone or on the high seas as a result of a casualty. For the purposes of this chapter, when a ship is abandoned at a place of refuge or ceases to be a ship, the coastal state has to consider the possibility that the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 1989 (Basel Convention) might apply.160 Mirror regional conventions could similarly become applicable.161 The Basel Convention is aimed at promoting the proper management, disposal and movement of hazardous and other wastes, and consequentially proper ship-breaking practices.162 The protection of human health

Bonn, 23 June 1979 (in force 1 November 1983), 19 I.L.M. 15 (hereafter Bonn Convention), <www.cms.int/documents/convtxt/cms_convtxt.htm>, 1 August 2005. There are also numerous regional environmental conservation instruments. 160 Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, Basel, 22 March 1989 (in force on 5 May 1992) (hereafter Basel Convention), <www.basel.int/text/con-e-rev.doc>, 15 July 2005. The issue discussed in this chapter is not that of a ship destined for ship-breaking when it departs from or transits through the coastal state, or where the coastal state is the intended ship-breaking state, but rather a ship that is abandoned or no longer operational after it is permitted refuge by the coastal state, for example because of a casualty and as a result of which it becomes a constructive total loss. 161 Convention on the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, Bamako, Mali, 29 January 1991, <ﬂetcher.tufts.edu/multi/texts/BH984.txt>, 18 July 2005, (not in force); Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal, Izmir, Turkey, 1 October 1996 (not yet in force), <www.unepmap.org/Archivio/All_Languages/WebDocs/BC&Protocols/ HazW96_eng.pdf>, 1 August 2005. Convention to Ban the Importation into Forum Island Countries of Harzardous and Radio Active Waste and to Control the Transboundary Movement of Harzardous Waste within the South Paciﬁc Region, Waigani, Papua New Guinea, 16 September 1995 (in force on 21 October 2001), <www.oztoxics.org/waigani/waigani/conve_c1.html>, 18 July 2005. 162 See Technical Guidelines for the Environmentally Sound Management of the Full and Partial Dismantling of Ships, adopted at the Sixth Meeting of the Conference of Parties to the Basel Convention, 13 December 2002, <www.basel.int>, 18 July 2005. The IMO Assembly adopted the Guidelines on Ship Recycling, IMO Doc. Res.A.952(23), 5 December 2003. The ILO adopted Guidelines on Safety and Health in Shipbreaking, <www.ilo.org/public/english/protection/safework/sectors/shipbrk/index. htm>, 18 July 2005. See also International Chamber of Shipping, Industry Code on Recycling, February 1999, <www.marisec.org/recycling>, 18 July 2005.

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and the environment, illicit movement and disposal of such wastes and international co-operation are paramount concerns. ‘Wastes’ are deﬁned as ‘substances or objects which are disposed of or are intended to be disposed of or are required to be disposed of by the provisions of national law’.163 Wastes may include a ship as well its cargo and other hazardous material on board, and this may be at the same time as it is considered a ship under IMO conventions.164 However, wastes generated by the operation of a ship and covered by other international instruments, such as MARPOL 73/78 wastes, are not covered by the Basel Convention.165 Although the ship itself could be the waste in question, it is unclear when a ship becomes waste.166 Also, it is conceivable that ship that has been abandoned is not necessarily to be considered waste.167 The Basel Convention applies when there is movement of wastes that involves at least two states.168 In a ship refuge scenario, at a minimum there is the coastal state (or port state, if the refuge is a port) and the ﬂag state. Possibly,

163

Basel Convention, supra note 160, Art. 2(1). Report of the Open-ended Working Group of the Basel Convention on the Work of its Second Session, UNEP Doc. CHW/OEWG/2/12, 16 December 2003, at 17; Report of the Open-ended Working Group of the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal, UNEP Doc. CHW/OEWG/3/34, 16 August 2004. For a list of hazardous materials carried on board a ship, see IMO Guidelines on Ship, supra note 162, Appendices 1–3. 165 Basel Convention, supra note 160, Art. 1(4). 166 See Legal Aspects of the Full and Partial Dismantling of Ships: Compilation and Summary of Comments and Observations to Facilitate the Work of the Intersessional Working Group Prepared by the Secretariat, 7 April 2004 (hereafter Basel Secretariat Compilation), <www.basel.int/ships/crp23/crp23e.doc>, 18 July 2005. See also BAN Comments and Proposals for Resolving Basel Convention Shipbreaking Issues, Submitted by the Basel Action network (BAN), IMO Doc. ILO/IMO/BC WG 1/7/4, 7 February 2005. The discussion in these two documents suggests that both objective and subjective indicators could be used to determine when a ship becomes waste. Objective indicators are those that determine the status of the ship on the basis of ﬁxed criteria (e.g., inability to obtain safety certiﬁcation, existence of a dismantling contract, deletion from the ship register). Subjective indicators concern, for example, the decision of an owner, operator or a person having an interest in the ship to no longer use the ship as a ship. The IMO’s position is that a ship is no longer a ship when it does not meet the deﬁnition of ship, e.g., in MARPOL 73/78. Basel Convention Secretariat, ibid. 167 For example, France has indicated that when a ship is abandoned, there is no a priori criterion to consider it as waste, although the port state may consider it as such. The International Chamber of Shipping is of the view that a ship which is laid up or is temporarily unemployed may be considered decommissioned, but cannot be considered as waste. Basel Convention Secretariat, ibid. 168 Basel Convention, supra note 160, Art. 2(3). 164

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there may also be the state(s) from where the cargo was originally loaded, if the cargo is deemed waste. The Basel Convention provides a detailed responsibilities for the ‘state of export’, ‘state of import’ and the ‘state of transit’.169 The difﬁculty that arises is which states, in a maritime context, assume the responsibilities of the Basel Convention states. The state of import is logically the coastal state or port state.170 Although not necessarily so intended at the outset, a ship that is abandoned in a port could be construed as having been abandoned by the owner for the purpose of disposal therein. Under the IMO Guidelines on Ship Recycling, the shipowner has the responsibility to deliver the ship to a recycling facility, but in some instances it is possible that the real owner cannot be traced.171 It is not clear whether the state of export is necessarily the ﬂag state, in particular in the case of ships of open registers where the ship has little or no beneﬁcial link to the ﬂag state. But some states consider the export state obligations as falling on the ﬂag state when a ship becomes waste in an area under the jurisdiction of a party.172 Under the IMO Guidelines on Ship Recycling, the ﬂag state has responsibilities for the whole operating life of a ship, including the ﬁnal voyage.173 However, a ﬂag state may de-register a ship that is not compliant with its safety and other regulatory requirements, in which case the ship becomes stateless and there is no longer a ﬂag state concerned. These are important considerations for the Basel Convention because the state of export has, inter alia, duties of notiﬁcation and in some situations also to re-import the hazardous or other wastes.174 A ship abandoned at a place of refuge is potentially in violation of the notiﬁcation requirement, as well as the principle of

169

State of export: ‘a Party from which a transboundary movement of hazardous wastes or other wastes is planned to be initiated or is initiated’; state of import: ‘a Party to which a transboundary movement of hazardous wastes or other wastes is planned or takes places for the purpose of disposal therein or for the purpose of loading prior to disposal in an area not under the national jurisdiction of any State’; state of transit: ‘any State, other than the State of export or import, through which a movement of hazardous wastes or other wastes is planned or takes place’. Ibid., Art. 2(10), (11) and (12). 170 Under the IMO Guidelines on Ship Recycling, there could be a role for the port state, which is considered as a supplement to ﬂag state control on ship recycling issues. Supra note 162, para. 9.3. 171 IMO Guidelines on Ship Recycling, ibid., para. 8.2.1. 172 E.g., Canada. Bahrain, France and Japan seem to have similar views. Poland sees responsibilities for the ﬂag and port states. Trinidad and Tobago sees a responsibility for the port state. Mexico sees responsibilities for the state where the ship becomes waste and the ship-breaking state. The view of the IMO is the ﬂag state. Other views were expressed. Basel Convention Secretariat, supra note 166. 173 IMO Guidelines on Ship Recycling, supra note 162, para. 9.2. 174 Basel Convention, supra note 160, Arts. 6(1) and 8.

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prior informed consent of the coastal state, as the state of import.175 Similarly, a ship that is scuttled in a national maritime zone without the prior informed consent of the coastal state would be in violation of the Basel and, as seen earlier, the London Conventions.176 Moreover, where a ship in a place of refuge becomes destined for dismantling, the Basel Convention requires identiﬁcation of the exporter, notiﬁer and disposer.177 In Basel Convention scenarios, the coastal state could face the risk of a ship to which it provides refuge becoming waste regulated by the Convention. Obviously, the granting of refuge cannot substitute the required prior informed consent under the Basel Convention. In exceptional situations, the coastal state may not be in a position to make demands to the state of export, because it might not be clear as to what state that is. The full extent and modus of application of the Basel Convention to ships as waste is still unsettled law. Until current efforts at further legal development and clariﬁcation of appropriate management and procedural practices resolve the above issues, there could remain additional concerns for the coastal state granting a place of refuge to a ship that could end up as Basel Convention waste within its territory.178

FLAG STATE RESPONSIBILITIES AND CASUALTY INVESTIGATION All states enjoy the freedom of navigation in the EEZ and on the high seas and the right to sail ships under their ﬂags.179 The ﬂag state has an obligation to ﬁx

175

Ibid., Art. 6. ‘Disposal’ includes ‘release into seas/oceans including sea-bed insertion’. Ibid., Art. 2(1) and Annex IV(D7). ‘Area within the national jurisdiction of a State’ includes marine area ‘within which a State exercises administrative and regulatory responsibility in accordance with international law in regard to the protection of human health or the environment’. Ibid., Art. 2(9). 177 See the introductory comments of the Basel Convention Secretariat, supra note 166. An additional issue raised by the Basel Convention Secretariat is “whether there should be any obligation on other entities, such as insurers, consignees and consignors of cargo . . .” Ibid. 178 In addition to the Basel Convention initiatives, the issue of shipbreaking has been and continues to be considered by the IMO and International Labour Organization (ILO). Because of overlapping considerations of this problem by the three fora, the Joint Working Group of the International Labour Organization, the International Maritime Organization and the Basel Convention on Ship Scrapping was established by Basel Convention COP Resolution VII/25, <www.basel.int/ships/relev-decisions-copvii.pdf #VII_26>, 18 July 2005. This resolution invited the Working Group ‘to discuss the responsibility of ﬂag States in the context of environmentally sound management of ship dismantling’. 179 LOS Convention, supra note 3, Arts. 87 and 90. 176

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conditions for ship registration and nationality.180 In principle, there ought to be a genuine link between the ﬂag state and the ship, but in reality there are numerous registries that register ships that at best have a tenuous link with the ﬂag state.181 Most importantly, the ﬂag state has exclusive jurisdiction over its ships on the high seas.182 Beyond the high seas, however, foreign ships in port are subject to the national laws of the port state, and foreign ships exercising innocent, archipelagic sea lanes and transit passage have a legal duty to comply with the laws and regulations of the coastal state concerning passage.183 Similarly with ships exercising the freedom of navigation through the EEZ, they have a duty to comply with the coastal state’s laws.184 Thus in the national maritime zones, the ﬂag state’s full jurisdiction over its ships is accompanied by the speciﬁc jurisdictions that the coastal state may be entitled to exercise over foreign ships relative to each maritime zone. If the ﬂag state decides to act on behalf of a ship in distress ﬂying its ﬂag, it has to contend with potential parallel jurisdiction exercised by the coastal state. The ﬂag state has several duties consequential to having ships ﬂy its ﬂag, all of which are normally performed by a national maritime administration or an institution exercising similar functions. With exclusive jurisdiction comes a duty to exercise effective jurisdiction and control over administrative, technical and social matters.185 The ﬂag state is required to take and enforce measures to ensure safety at sea for its ships in accordance with international standards.186 The expectation is that ‘proper jurisdiction and control’ be exercised, and other states may prompt the ﬂag state to perform its obligation in this regard.187 The proper exercise of these responsibilities would re-assure coastal states that ﬂag states are ensuring that their ships adhere to international standards.188

180

Ibid., Art. 91. An attempt to address the genuine link requirement in ship registration was made with the adoption of the United Nations Convention on Conditions for Registration of Ships, Geneva, 7 February 1986, 26 I.L.M. 1229 (hereafter the UN Convention on Registration). The convention never came into force. 182 LOS Convention, supra note 3, Art. 92. 183 Ibid., Arts. 21(4), 42(4) and 53(11). 184 Ibid., Art. 58(3). 185 Ibid., Art. 94(1). This includes maintenance of a ship register and assumption of jurisdiction over its ships and crew in respect of administrative, technical and social matter, ibid., Art 94(2). 186 Ibid., Art. 94(3), (4) and (5). 187 Ibid., Art. 94(6). The UN Convention on Registration further developed the responsibilities of the national maritime administration to enable the exercise of effective jurisdiction and control, supra note 181, Art. 5. 188 A longstanding criticism of so-called ﬂags-of-convenience is laxity in the implementation and enforcement of international standards. See L. S. Johnson, Coastal State 181

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Casualties similar to the ‘Erika’ and ‘Prestige’ raise an issue of potential parallel casualty investigation efforts by the ﬂag state and the affected state. In principle, the LOS Convention provides the following provision to guide such states: Each State shall cause an inquiry to be held by or before a suitably qualiﬁed person or persons into every marine casualty or incident of navigation on the high seas involving a ship ﬂying its ﬂag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The ﬂag State and the other State shall co-operate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.189

Although there is a legal obligation for both states to co-operate, in practice there are signiﬁcant political, legal and investigation factors, giving rise to potential conﬂicts of interest that may militate against such co-operation. Even at a domestic level, although the casualty investigation should ideally be an independent process, there are real concerns about conﬂict of interest when the investigative body is a governmental body.190 At an international level, these conﬂicts may compound. One potential concern of the affected coastal state is when it is reserving its position in view of a potential claim against the ﬂag state, and in such a situation it may have no choice but to undertake a totally separate investigation. A second concern is where one of the two parallel investigation processes is not purely safety-oriented, but is potentially part of a criminal investigation. In this case, there could be practical problems of witnesses not being fully co-operative.191 A third concern is where the denial of a place of refuge may have been partly contributive to the casualty, and the coastal state has a contrary view. For example in the case of the ‘Prestige’, contrary to the view of Spanish authorities, the casualty investigation undertaken by the Bahamas Maritime Authority found that the ‘provision of a place of refuge could well have resulted in a much more favourable outcome and prevented the subsequent large scale pollution of a long stretch of coastline’.192

Regulation of International Shipping (Dobbs Ferry, N.Y., Oceana, 2004), 9–10, in particular literature references in footnotes 33 and 34. 189 LOS Convention, supra note 3, Art. 94(7). 190 See K. T. Ghirxi and J.-U. Schröder, “The Regulation of the Investigator and the regulator in Maritime Casualty Investigations”, in: J. Olivella Puig et al., eds., Maritime Transport II: Maritime Transport & Maritime Histrory (Universitat Politecnica de Catalunya, Barcelona, 2003), 691–701. 191 Witnesses might not participate as freely as they would normally in a casualty investigation for fear of self-incrimination. 192 Bahamas Maritime Authority, Report of the Investigation into the Loss of the Bahamian Registered Tanker “Prestige” off the Northwest Coast of Spain on 19 November 2002 (London, Bahamas Maritime Authority, 2002), at 81.

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WHEN DISPUTES ARISE There are numerous opportunities for inter-state disputes on places of refuge issues to arise, whether as between the coastal state and the ﬂag state, or even as between coastal states. In most cases, international conventions will contain dispute settlement clauses which may provide for direct bilateral diplomatic modes of settlement (e.g., negotiations), third party assisted diplomatic modes (e.g., mediation and conciliation), and third party adjudication modes (e.g., arbitration and reference to an international court). The LOS Convention contains the most comprehensive dispute settlement system for ocean disputes. Not all disputes are subject to compulsory settlement. Fortunately, compulsory procedures apply (1) if the dispute concerns the interpretation of the freedom and rights of navigation in the LOS Convention or in regard to other internationally lawful uses associated with the operation of ships,193 (2) when it is alleged that such rights have been exercised in contravention of the Convention or legitimate coastal state laws,194 and (3) when it is alleged that the coastal state has acted in contravention to its marine environment protection responsibilities in the LOS Convention or as adopted through the IMO.195 Before the compulsory settlement procedure is engaged, the states concerned are expected to take certain steps. Ideally, their differences would be settled through an exchange of views and negotiations.196 If they are unable to agree, they are free to choose a common procedure, and if there is a regional arrangement that applies, then it applies in lieu of the LOS Convention dispute settlement provisions, unless they choose otherwise.197 If they cannot agree, then the LOS provisions apply. They may also resort to conciliation, instead of using a judicial or arbitral procedure.198 Either state party to the dispute is in a position to initiate the dispute settlement process.199 The actual procedure depends on the relative choices made by the states concerned in any declaration they may have made on signing, ratifying or acceding to the LOS Convention.200 Should the states concerned have

193

LOS Convention, supra note 3, Art. 297(1)(a). Ibid., Art. 297(1)(b). 195 Ibid., Art. 297(1)(c). 196 Ibid., Art. 283. 197 Ibid., Arts. 280–282. 198 Ibid., Art. 284. 199 Ibid., Art. 286. 200 The choice is between: the International Tribunal for the Law of the Sea, based in Hamburg; the International Court of Justice at The Hague; an arbitration tribunal established under Annex VII of the LOS Convention; and a special arbitration tribunal established under Annex VIII of the convention. Ibid., Art. 287(1). 194

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chosen a different procedure, arbitration under Annex VII would apply. However, state parties involved in disputes that require technical expertise, in particular in relation to marine environment protection and navigation, including pollution from vessels and dumping, are well served by a novel special arbitration procedure in Annex VIII.201 The arbitrators are drawn from lists of experts maintained by international organisations.202 Parties may agree that the tribunal perform a fact-ﬁnding function.203 For states opting for dispute resolution through the International Court of Justice, and wishing to have dedicated rather than general expertise on environmental matters, there is also the possibility of utilising the Chamber for Environmental Matters of the court.204 Also of utility to ﬂag states is the fast procedure through the International Tribunal for the Law of the Sea for the prompt release of vessels and crews, when this is at issue with the coastal state.205 Although this procedure has been resorted to by ﬂag states in support of detained ﬁshing vessels ﬂying their ﬂag and their crews,206 it has not been used in relation to detained crew members in the cases of ‘Erika,’ ‘Prestige’ and ‘Tasman Spirit’ when it was in fact available.207

CONCLUSION This chapter surveyed the broader scope of law of the sea and international marine environmental law issues raised by the problem of places of refuge for ships in need of assistance. Inevitably, at least initially, the discourse that produced the IMO Refuge Guidelines was largely undertaken in intergovernmental and non-governmental maritime law and industry fora. Hence the discourse’s bias of emphasis on international maritime law instruments identiﬁed at the

201

Ibid., Annex VIII, Art. 1. Ibid., Annex VIII, Art. 2. The environment list is maintained by the United Nations Environment Programme (UNEP) and the navigation/vessel pollution list is kept by the IMO. 203 Ibid., Annex VIII, Art. 5. 204 Specialised chambers are set up pursuant to Art. 26 of the Statute of the International Court of Justice, <www.icj-cij.org/icjwww/ibasicdocuments/ibasictext/ ibasicstatute.htm#CHAPTER_I>, 1 August 2005. 205 LOS Convention, supra note 3, Art. 292. 206 For ITLOS cases concerning prompt release, see International Tribunal for the Law of the Sea: Proceedings and Judgments, <www.itlos.org/start2_en.html>, 1 August 2005. 207 See E. Gold, “Privilege or Peril? The Rights of the Shipmaster”, Seaways, March 2005, <www.ifsma.org/fairtreatment/documents/command.pdf>, 1 August 2005, 7–8. 202

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outset of this chapter. This permitted the discourse to achieve depth, but probably at the cost of scope. This chapter has identiﬁed several environmental issues that are actually or potentially relevant to the discourse. The issues raised by the problem are of concern also outside maritime fora and therefore the maritime administrator needs to consider interrelationships with other international law of the sea and marine environmental responsibilities of the coastal state. The maritime administrator performs ‘ﬂag state’ and ‘coastal state’ functions. In an age of integrated coastal and ocean management, the integrated approach suggests a better balance between depth and scope of marine safety and environmental concerns.

Chapter 10 Refuge and Salvage Proshanto K. Mukherjee INTRODUCTION Ships in distress or otherwise in trouble at sea and seeking refuge in a port or sheltered waters is not a new phenomenon; it is as old as shipping itself. The issue of whether a right exists at customary international law for such a ship to be provided refuge and whether there is a corresponding obligation of the coastal state is rather moot in today’s context.1 At a time when only safety of human lives was of concern, no one would have argued, regardless of the existence or absence of any customary law to support it, that a stricken ship was entitled to refuge. It would have been immoral to think otherwise; and it is still inarguably the case that persons at sea in danger or distress will be given refuge by coastal states, albeit under controlled conditions. Even if it is sought for the purpose of saving and preserving property, refuge is not normally refused

1

For detailed discussions of these questions, see Eric van Hooydonk, “The Obligation to Offer a Place of Refuge to a Ship in Distress”, CMI Yearbook 2003 (Antwerp, Comité Maritime International, 2003), 403–445. See also Welmoed van der Velde, “The Position of Coastal States and Casualty Ships in International Law”, CMI Yearbook 2003 (Antwerp, Comité Maritime International, 2003), 479–485.

271 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 271–297. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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unless there is an environmental dimension to the request. Indeed, if a refugeseeking ship is a polluter, there is no doubt that the coastal state to whom request is made will be quick to assert the legal position that prima facie it has a right to refuse that ship entry into its waters. Time and again, since the ‘Torrey Canyon’ disaster of 1967, the shipping community has witnessed not only refusals but also destruction of the polluting or potentially polluting vessel by coastal state authorities. The ‘Christos Bitas’, ‘Castor’ and ‘Erika’ are prime examples of refusal of entry while the ‘Torrey Canyon’ and ‘Kurdistan’ exemplify cases where the vessels were sunk by bombing, gunﬁre or other means by, or on the orders of enforcement authorities of coastal states.2 Further examples of refusal of refuge are the ‘Andros Patria’ (1978), ‘Protokletas’ (1992), ‘Aeolian Sky’ (1979), ‘Khark 5’ (1989), ‘Ya Mawlaya’ (1994), ‘Smirdan’ (1997), ‘Ventura’ (1999) and ‘Bismihita La’ (2001).3 Perhaps the most ridiculous of the cases was the ‘Castor’. First, the vessel was refused entry by three governments, namely, those of Morocco, Gibraltar and Spain, after which it was towed around the western Mediterranean Sea for several weeks with a team of salvors on board, facing gale force winds and other hazards including a near collision. A total of eight states refused the vessel entry. The vessel, the salvors and other persons on board endured the treacherous conditions for some six weeks before a transfer operation was carried out off the Libyan coast and the vessel towed to Greece for repairs.4 The issue, as is well known, was exacerbated by the ‘Prestige’ incident after the ‘Erika’ affair instigated some action at the International Maritime Organization (IMO), including debate over whether an international convention should be adopted to address the problem.5 What has emerged so far is a set of IMO Guidelines.6 This chapter is about salvage in the context of refuge. While there are inevitable overlaps and interfaces with other issues relating to places of refuge addressed in this book, the scope of this chapter is relatively narrow. As such, there is no intention of reiterating or elaborating on the subject of places of refuge in general or the facts of the ‘Prestige’ incident except to the extent necessary to illuminate the salvage issue.

2

See Colin de la Rue and Charles B. Anderson, Shipping and the Environment (London, Lloyd’s of London Press, 1998), 567–568. 3 See “Places of Refuge”, IMO Doc. MSC 77/8/2 of 14 February 2003 submitted by the International Union of Marine Insurance (hereafter IUMI). 4 Ibid., at 2. 5 van der Velde, supra note 1, at 479–482. 6 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/Res.949, 5 March 2004 (hereafter IMO Guidelines).

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FOUNDATION OF SALVAGE At the outset, it must be recognised that, second only to the concern over the lives and safety of salvors, the salvorial aspect of refuge centres largely on the salvor’s commercial interests and the potential detriment he may suffer as a result of refuge being refused. This is a fundamental consideration. The salvor’s commercial welfare hinges on the age-old customary law requirement of success as a necessary ingredient for the receipt of a salvage reward. The principle is entrenched in the Lloyd’s Open Form of Salvage Agreement (LOF) under the caption ‘no cure-no pay’. The traditional rigidity and harshness of this rule is, at least in theory, counterbalanced by the recognition that salvage as a service to the maritime world is virtually indispensable, and that as a matter of public policy, salvors must therefore be afforded adequate incentives to continue to provide salvage services. Nowhere is the primacy of public policy in connection with maritime salvage expressed in English law as articulately as in Nicholson v. Chapman in the dictum of Eyre C.J. where he states: Principles of public policy dictate to civilised and commercial countries not only the propriety but even the absolute necessity of establishing a liberal recompense for the encouragement of those who engaged in so dangerous a service . . . Such are the grounds upon which salvage stands.7

And the great American judge, Story J. in his inimitably characteristic way, stated in The Henry Newbank: Salvage, it is true, is not a question of compensation pro opera et labore. It raises to a higher dignity. It takes its source in a deeper policy. It combines with private merit and individual sacriﬁces larger considerations of the public good, of commercial liberality, and of international justice. It offers a premium by way of honorary reward, by prompt and ready assistance to human sufferings; for a bold and fearless intrepidity; and for that effecting chivalry, which forgets itself in an anxiety to save property, as well as life.8

In The Holder Borden9 it was held that salvage was awarded for ‘endeavour so heroic that it is unrivalled in ﬁction’. All the decisions cited above are relatively old, long before the advent of oil pollution at sea, and that is perhaps why the salvor’s indispensable service to maritime humanity is so explicitly recognised in the above-noted passages. The ‘major contribution’ of salvage operations is acknowledged in the third paragraph of the preamble to the International Convention on Salvage, 1989

7 8 9

(1793), 2 H.BI 234. (1883), 11 Fed. Cas., (Case No. 6376) 1166 at 1170. 12 Fed. Cas. 331 (No. 6600) (D. Mass. 1847).

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(Salvage Convention).10 This public policy rationale is the premise from which stems the other fundamental tenet; that is, the need to provide adequate incentives to the salvor. It is expressly recognised in the fourth paragraph of the preamble to the Salvage Convention emphasising ‘the need to ensure that adequate incentives are available to persons who undertake salvage operations . . .’.

ULTIMATE PRESERVATION OF THE RES In the customary law of salvage, success is one of the ingredients of the socalled triumvirate; the other two are danger and voluntariness. Apart from these three ingredients, a fundamental requirement is that the property in question must be a proper subject of salvage.11 It is notable in this context that the rigidity of what constitutes a proper subject of salvage has been severely diluted by the deﬁnition of “property” in the Salvage Convention, the issue is still relevant to claims under Article 14 of the Convention which only apply to “a vessel which by itself or its cargo threatened damage to the environment . . .” As mentioned above, the requirement of success ﬁnds expression in the principle of ‘no cure-no pay’, and it is fulﬁlled only if the salved property is ultimately preserved for the beneﬁt of its proprietor. Otherwise, under the customary law, the salvor is compelled to walk away empty-handed without a reward. In The Melanie (Owners) v. The San Onofre (Owners),12 Lord Phillimore held in the House of Lords that ‘[S]ervices, however meritorious, which do not contribute to ultimate success, do not give a title to salvage reward.’ However, partial success can be rewarded provided there is no evidence of negligence or want of skill in the rendering of the salvage services.13 The point here is that a salvor may expend considerable effort in mobilising crew and equipment over an extended period of time to retrieve a damaged or sunken vessel and its cargo, only to discover that he is not entitled to any remuneration because he failed to ultimately preserve the res. This can happen by reason of extenuating circumstances beyond his control. It frequently happens when a polluting vessel undergoing salvage is refused refuge and its salved value is depleted; or worse still, the ship is taken to the high seas and sunk or otherwise destroyed, when its salved value is reduced to zero. There are numerous such examples; ‘Christos Bitas’ where refuge was refused14 as well as sev-

10

International Convention on Salvage, 1989, London, 28 April 1989, U.K.T.S. 1996, No. 93. 11 The Gas Float Whitton No. 2 (1897), A.C.337 (H.L.). 12 [1925] A.C. 262 at 263. 13 Manchester Liners Ltd. v. m.v. Scotia Trader [1971] F.C.R. 14 (Can. Fed. Ct. T.D.). 14 de la Rue and Anderson, supra note 2, at 568–569.

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eral recent ones including ‘Prestige’, ‘Khark 5’, ‘Castor’, etc.15 In the ‘Torrey Canyon’ and ‘Kurdistan’ incidents, the British and Canadian governments, respectively, had the vessels sunk. It was precisely this malaise of maritime leprosy and its dire commercial consequences that drove salvors away from leaking tankers.16 Eventually the rude awakening of the international maritime community to a rampant state of crisis led to law reform in the international regime of salvage, ﬁrst through the LOF and then the Salvage Convention. The LOF 1980 provided for a ‘safety net’ pursuant to which an exception was made to the rigour of the ‘no cure-no pay’ rule. Regardless of whether there was a threat of damage to the environment or whether the salvor was successful in preventing or mitigating pollution damage, he could recover 15 percent of his expenses even if he did not earn a reward because of his failure to ultimately preserve the res, whether or not such failure resulted from governmental action. The ‘safety net’ principle was eventually modiﬁed in the Salvage Convention through the special compensation regime of Article 14, which provided for reimbursement of salvage expenses (as deﬁned in the Convention) plus an uplift of 30 percent up to a maximum of 100 percent in deserving cases. The decision of the House of Lords in The Nagasaki Spirit,17 to exclude an element of proﬁt in determining what is a ‘fair rate’ for equipment and personnel under Article 14.3 of the Salvage Convention, was not viewed favourably by the salvage industry. With support from the insurance industry and the cooperation of shipowners as the assureds, the Special Compensation P&I Club Clause (SCOPIC)18 was developed as an alternative to Article 14.19 The tariff rates, which are an integral part of SCOPIC, are based on commercial practice and a proﬁt element is therefore taken into account.20 Article 14 of the Salvage Convention introduced a way to prevent a salvor from walking empty handed in the event of not being able to ultimately preserve the res provided there was a threat of damage to the environment. The relatively new device of SCOPIC, which seems to be enjoying the favours of the salvage and marine insurance

15

IUMI, supra note 3, para. 7 at 2. Edgar Gold, “Marine Salvage: Towards a New Regime”, 20 Journal of Maritime Law and Commerce (1989), 489 at 492. See also Geoffrey Brice, “Salvage and the Role of the Insurer”, (2000) Lloyd’s Maritime and Commercial Law Quarterly, Part 1, at 27. 17 [1997] 1 Lloyd’s Rep. 323 afﬁrming the lower courts’ decisions [1996] 1 Lloyd’s Rep. 449 (C.A.) and [1995] 2 Lloyd’s Rep. 44 (Com.Ct.) (hereafter The Nagasaki Spirit). 18 Special Compensation P&I Club Clause (SCOPIC), <www.lloydsagency.com/ agency/agency.nsf/0/C4E61A1DD222B6B980256B4B00349822?OpenDocument>, 12 July 2005. 19 LOF 2000 is designed so that SCOPIC can be chosen as an option. However, it only applies if it is actually invoked. 20 For an explanation of and commentary on SCOPIC, see Brice, supra note 16. 16

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industries alike, has substantially reduced that risk,21 arguably to the point where the salvor can recover expenses that ostensibly include proﬁt. This would be the view taken by those who support The Nagasaki Spirit decision.

RELEVANT INTERNATIONAL INSTRUMENTS United Nations Convention on the Law of the Sea In the context of salvors seeking a place of refuge, there are several interactive issues. They involve the salvor’s perceptions in terms of his legal, commercial and practical interests, as well as the rights and responsibilities of a coastal or port state under public international law. The salvor’s legal position may be based on customary international law, his ﬂag state law, or the domestic law of the coastal or ﬂag state. In the two latter cases, the law may or may not incorporate a relevant convention. The salvor’s commercial interests will be tempered by the salvage agreement, if there is one, or relevant convention provisions, or domestic ﬂag state or coastal state law independent of convention. At any rate, closely related to his commercial interests would be the practical viability of the salvage operation. To put it succinctly, whether or not a salvor is afforded a place of refuge in a given set of circumstances will undoubtedly impact on the practical success of the operation and its commercial consequence in terms of pecuniary gain. The coastal or port state, on the other hand, will primarily look to its environmental concerns, i.e., its rights and responsibilities in relation to the protection of its marine and coastal environment. Sympathy for the salvor’s position will be secondary. But many a times, as was sadly evident from the ‘Prestige’ incident, a sympathetic attitude towards the salvor’s request for a place of refuge may well be in the environmental interests of the coastal state. Indeed, pollution damage can be better contained and mitigated if a place of refuge is given to a salvor attempting to save a leaking tanker. A noted commentator makes the following observation: Salvors have found that, while States are loud in their support for introducing legal rules to protect the environment, not all are sufﬁciently active when it comes to casualties in their own waters. Many states have legislation prohibiting foreign salvors operating in their waters, yet delay caused by sending a local contractor could be disastrous – even assuming it had the necessary expertise. States are also reluctant to take into their ports the “international leper,” the damaged oil tanker under tow.22 21

Richard Shaw, “Places of Refuge – International Law in the Making”, 9 Journal of International Maritime Law 2003, 159 at 166 (hereafter Shaw, International Law). 22 Nicholas Gaskell, “The 1989 Salvage Convention and the Lloyd’s Open Form of Salvage Agreement”, 16 Tulane Maritime Law Journal (1991), 1.

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Be that as it may, it is perhaps instructive to at least identify the relevant provisions of the 1982 United Nations Convention on the Law of the Sea23 (LOS Convention) in this regard. Article 192 sets out the general obligation of states to protect and preserve the marine environment. Within the scope of that general duty or obligation, states must, under Article 194, take certain speciﬁc measures such as those necessary to prevent, reduce and control marine pollution from any source. States must harmonise their policies, ensure that activities under their jurisdiction or control are carried out in a manner that will not cause pollution damage to other states, and that pollution will not spread beyond their areas of sovereign jurisdiction. In taking preventive measures, states must not unjustiﬁably interfere with legitimate activities carried out by other states. Presumably this would include non-interference with salvage operations, a reversed positive expression of which could be construed as facilitation of such operations including provision of refuge. Arguably, such facilitation would be consistent with, and an effectuation of, a coastal state’s general obligation under Article 192 to protect and preserve the marine environment. Article 197 calls for co-operation on a global or regional basis. Article 199 requires states to put into place contingency plans. Providing a place of refuge to a requesting salvor is indubitably a part of this requirement. Finally, Article 221 reinforces the rights of a coastal state (or provides the basic framework) to intervene beyond the territorial seas in the event of a maritime casualty, which by deﬁnition includes ‘collision, stranding or other incident of navigation’. A maritime casualty would inevitably involve salvage. It is submitted that the right under this article to ‘take and enforce measures’ subsumes the obligation to provide refuge to maritime property undergoing salvage where there is pollution or threat of pollution.

International Convention on Salvage, 1989 The provision in the Salvage Convention directly relevant to refuge is Article 11. It provides as follows: A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provisions of facilities to salvors, take into account the need for co-operation between salvors, other interested parties and public authorities in order to ensure the efﬁcient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general.

23 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN/Doc. A/CONF.62/122, 7 October 1982 (hereafter LOS Convention).

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This provision is a classic example of the proverbial mix of apples and oranges. The Salvage Convention is primarily a private law convention, and in its past incarnations has basically codiﬁed the customary law of salvage as applied and practised in most maritime countries. With the advent of the 1989 Convention, distinctive for its consideration of the concerns of salvors together with those of maritime property owners and their insurers, in casualties involving environmental damage triggering a dilution of the ‘no cure-no pay’ principle, we now also have typical public law provisions which the one cited above exempliﬁes. Whereas the private law provisions refer to deﬁnitive remedies of salvors and property owners (with insurers standing behind them) when rights are breached, the public law provisions simply set out rights and ‘soft’ obligations of states without a reference point as to what recourse is available to a salvor if the rights are abused or the soft obligations are virtually ignored by the coastal state. As one commentator has observed ‘Article 11 is a rather empty exhortation to States to “take into account” the need for co-operation when exercising powers relating to salvage operations’.24 It is signiﬁcant that both environmental organisations as well as shipowners, in a rare show of consensus during the preparatory work leading up to the Convention, were in favour of strengthening this article to place a duty on coastal states to allow vessels in distress to enter their ports. A proposal made to that effect was withdrawn for lack of support. It was felt that a public law convention was the better place for the imposition of such an obligation.25 The intention of the 1989 Convention was neither to conﬁrm nor deny a right of access to a port of refuge of a ship in distress. The drafters viewed it principally as a private law convention and therefore did not favour the articulation of public law rights and responsibilities of states in any far-reaching manner.26 The result is an uncertain mix of private and public law provisions within the Salvage Convention, and the public law provisions are, unfortunately, vague and equivocal. The plight of the salvor remains in limbo as was demonstrated graphically in the ‘Prestige’ and other incidents. However, on the positive side, perhaps the soft obligations of Article 11 imposed on the coastal state have moved the matter a half-step forward. The purely contractual obligation of the shipowner to co-operate with the salvor to secure entry to a place of safety can hardly be transposed to a coastal state authority; with Article 11 there is at least some room for argument in favour of the salvor. The question of how Article 11 can be implemented in practice to alleviate the hardships of salvors is a critical one. In this regard it is notable that the

24 25 26

Ibid. See Hooydonk, supra note 1. Ibid.

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Comité Maritime International (CMI) conducted a survey among its members to determine what steps, if any, states had taken to implement this provision.27 Apparently less than 50 percent of the respondents indicated that their state had not become party to the Convention. Among those who had, none had introduced national legislation to give effect to Article 11. Only three countries, namely, Germany, Norway and the United Kingdom had actually designated places of refuge. Germany had done so by regulation, but access is not guaranteed to the places so identiﬁed. The places identiﬁed by Norway along its coastline are not designated for environmental situations. Information on the United Kingdom’s approach to assigning places of refuge is available on the Internet. Basically it consists of a list of places, but the list is not exhaustive.28 Interestingly, in Hong Kong, although places of refuge have not been designated, certain locations are well known to salvors because of repeated use by them.29

IMO Guidelines on Places of Refuge The central issue relating to refuge sought by a polluting ship is the conﬂict of rights and interests of the owners and salvors on the one hand, and those of the coastal or port state on the other. The eventualities of the ‘Prestige’ incident and subsequent legislative actions taken by Spain, arguably in violation of the LOS Convention, have exacerbated the polarisation of views within the international maritime community. The differences appear to be virtually irreconcilable. The difﬁculties raised by the conﬂicting interests are recognised by the IMO Guidelines developed by the Navigation Sub-Committee of the Maritime Safety Committee.30 It is instructive to examine at least those elements of the Guidelines that pertain to the interests of salvors. The dilemma of whether the ship should be brought into shelter near the coast or into a port, or whether it should be taken out to sea, ﬁnds expression in paragraph 1.1.2. This, of course, is a dilemma that is faced by both the salvor as

27 See IMO Doc. LEG 85/10/2, which contains the CMI report of this survey. A copy of the report is available in the CMI website, <www.comitemaritime.org>, 29 July 2005. See also Shaw, International Law, supra note 21, at 168. 28 See “The UK’s Approach to Assigning Places of Refuge”, Maritime and Coastguard Agency website, <www.mcga.gov.uk/c4mca/mcga-environmental/mcgadops_cp_environmental-counter-pollution/mcga-dops_cp_sosrep_role/internet-_dops_counterpollution-places_of_refuge_/dops_-_sosrep_-_ports_and_anchorages_hq-newpage-1003083.htm>, 12 July 2005. 29 Shaw, International Law, supra note 21, at 168. 30 IMO Guidelines, supra note 6; MSC 77/26 Report of the Maritime Safety Committee on its 77th Session (Section 8).

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well as the coastal or port state authorities. The advice provided in the next paragraph, 1.1.3, is that the best way to prevent pollution is to transfer the oil cargo or bunkers (which is essentially a salvage operation), and the best place for carrying out such an operation is a place of refuge. However, whether or not access should be granted is a political decision of the coastal state that can only be taken on a ‘case-by-case’ basis by weighing the advantages to the ship by giving it refuge and the risk of pollution suffered by the coastal state by doing so.31 The ﬁfth clause of the preamble recognises ‘the importance of and need for providing guidance for the master and/or salvors of ships in need of assistance’. This leads into the ‘guidelines for action required of masters and/or salvors in need of places of refuge’ under section 2 of the Guidelines. There are nine paragraphs in this section, the ﬁrst eight of which refer to the salvor in tandem with the master of the vessel seeking assistance. The master (assisted by the salvor) should ﬁrst appraise the situation. The consequences of the potential casualty should then be estimated in terms of four options, i.e., the ship remaining where it is, continuing on its voyage, reaching a place of refuge, or being taken out to sea. The master/owner should then identify the actions required and communicate to the coastal state’s maritime assistance service (MAS) the actions intended to be taken. MAS should notify the owner/salvor as to what facilities can be made available to admit the ship to a place of refuge or otherwise give assistance. Subject, where necessary, to prior consent by the coastal state, a salvage or towage agreement should be signed, and the salvor should comply with the practical requirements dictated by the coastal state. The above is the gist of section 2 from the salvor’s perspective, however, several items remain unclear. For example, What is prior consent of the coastal state? When is it required? How is necessity to be determined? Whether or not salvage or towage is necessary is for the master to determine. The signing of the relevant agreement is the master’s prerogative. It is not clear why this decision should be subject to the coastal state’s consent. Salvage and towage are both commercial services. In a salvage operation, time is undoubtedly of the essence. Under the circumstances, the requirement of such consent is an impediment to efﬁciency and can be grossly counterproductive in terms of maintaining maritime safety and preventing or mitigating pollution damage, especially where the salvor must also comply with the coastal state’s practical requirements whatever they may be.32

31

Ibid., see paragraph 1.1.5 of the Guidelines. Note that in the sixth preambular clause of the Guidelines is recognised ‘the need to balance both the prerogative of a ship in need of assistance to seek a place of refuge and the prerogative of a coastal State to protect its coastline’. See also Aldo Chircop, “Living With Ships in Distress – A New IMO Decision-Making Framework for the Requesting and Granting of Refuge”, 3 WMU Journal of Maritime Affairs (2004), 31 at 37. 32 See Chircop, ibid., at 39.

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Section 3 contains the guidelines for actions the coastal state is expected to take. Under paragraph 3.1.1.2, the coastal state authorities should ‘make an analysis of advantages and disadvantages of allowing a ship in need of assistance to proceed to a place of refuge . . .’. In this regard, several analysis factors should be taken into account. These are set out in paragraph 3.1.2.1 and in paragraph 2 of Appendix 1 to the Guidelines. From the salvor’s perspective it is important to note that under paragraph 3.1.1.2, the analysis should include, inter alia, the number of salvors on board and an assessment of human factors including fatigue, whether commercial salvage contracts have already been concluded, and the intentions of the salvor. Under paragraph 2 of Appendix 1, one consideration is whether in a non-sheltered place of refuge, salvage and lightering operations can be conducted safely. It is notable that the list of analysis factors is not exhaustive. Since the Guidelines is an instrument para droit, there is no reason why other parameters cannot be considered in speciﬁc cases.

Draft Wreck Removal Convention Removal of wreck is frequently associated with salvage operations. Thus, the law of wrecks and the law governing salvage, whether pursuant to custom, convention or simply contract, are closely connected. In shipping legislation, “Wreck and Salvage” are often treated together in the same part or chapter.33 There are essentially two aspects to the law of wrecks: the private law aspect in relation to wreck being maritime property,34 and the regulatory law aspect given that a wreck is often a potential navigational and environmental hazard. The private law aspect pertains to possession and ownership of wrecks, and the rights and liabilities arising out of those proprietary interests. The regulatory aspect is two-fold: dealing with protecting the wreck as property, usually administered through a government ofﬁcial such as a Receiver of Wreck, and addressing the question of responsibility for the removal of a wreck that poses a safety or environmental hazard.35 A wreck removal operation may be part of a salvage contract such as the LOF where the sui generis law of salvage would apply. It may or may not

33

See, e.g., Part XII of Cayman Islands Merchant Shipping Law, 1997 (2004 Revision consolidating Law 11of 1999 and Law 41 of 2001) and Part X of Merchant Shipping Ordinance, 1952 (1999 Consolidation) of Malaysia. 34 Maritime property consists of vessel, cargo and freight. The wreck of vessel and cargo, i.e., ﬂotsam, jetsam and lagan is also maritime property per Lord Esher in Wells v. The Gas Float Whitton No. 2 [1896] 42 at 63–64. See also Edgar Gold, Aldo Chircop and Hugh Kindred, Maritime Law (Toronto, Irwin Law Inc., 2003), 599–600. 35 See, e.g., sections 231 to 255 of the Merchant Shipping Act 1995 (UK) 1996, c. 20, sections 269 to 287 of the Cayman Islands Merchant Shipping Law, 1997, supra note 33, and similar legislation in other jurisdictions.

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include the 1989 Salvage Convention depending on whether the operation is subject to the jurisdiction of a state party to the Convention. Alternatively, the operation may be subject to a contract where the requisite ingredients of salvage law are absent. This is what is sometimes referred to as ‘contract salvage’ (as distinguished from the LOF-type salvage agreement). In both instances, particular provisions of the domestic law of the coastal state may be applicable pertaining to either or both aspects of wreck removal.36 If the removal of a wreck is pursuant to a LOF-type salvage agreement, a salvor’s entitlement to a salvage reward or special compensation/SCOPIC remuneration may well depend on whether a place of refuge is provided by the coastal state upon the salvor’s request. This aspect of wreck removal is obviously of commercial importance to the salvor. If the wreck removal operation is pursuant to contract salvage, the other party to the contract may be the owner of the wreck or his insurer, particularly in the event of a constructive total loss where the owner abandons the wreck in favour of the insurer who becomes liable for wreck removal.37 Depending, of course, on the exact terms of the contract, the salvor may be unable to fulﬁl his contractual obligations if a place of refuge is not provided. The other party to such contract salvage for wreck removal may be a maritime or port authority or other government entity such as a Receiver of Wreck. In such cases, it is more likely that a place of refuge will be provided. If it is not, it may be grounds for the salvor to repudiate the contract and claim damages. Wreck removal, particularly where the wreck is a source of pollution, is an issue of current concern and is on the agenda of the IMO Legal Committee. In fact, a draft Convention on Wreck Removal has been developed although it has not yet been ﬁnalised for adoption.38 The object of the convention is to set out the rights and responsibilities of states and owners of wrecks that may pose a danger to navigation and a threat to the marine environment. The draft convention addresses, inter alia, rights and responsibilities relating to identifying, locating, reporting and removing wrecks that are hazardous, particularly those that lie beyond the territorial sea of the coastal state. It is instructive to review the salient features of this draft convention that relate to salvage, salvors and refuge. First, there is the basic question of what is a wreck. In the draft convention the term is deﬁned as:

36

Ibid., relevant statutory provisions. For a comprehensive discussion on this legal phenomenon, see Rubina Khurram, “Total Loss and Abandonment in the Law of Marine Insurance”, 25 Journal of Maritime Law and Commerce, No. 1 (1994), at 95 where the relevant authorities are cited. 38 IMO, Draft Convention on Wreck Removal, IMO Doc. LEG 88/4, 16 February 2004. 37

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(a) a sunken or stranded ship; or (b) any part of a sunken or stranded ship, including any object that is or has been on board such a ship; or (c) any object that is lost at sea from a ship and that is stranded, sunken or adrift at sea; or (d) a ship that is about, or may reasonably be expected, to sink or to strand, where an act or activity to assist the ship or any property in danger is not already underway. It is interesting to note that at common law ‘wreck’ was deﬁned as ‘that cast ashore at ebb tide upon the shelf below the ﬂood mark’.39 In early English admiralty law, civil droits were the Admiral’s perquisites or proprietary rights in wrecks at sea. By statute ‘wreck’ was deﬁned to include jetsam, ﬂotsam, lagan and derelict,40 but only where they were washed ashore. This deﬁnition is still found in the national legislation of several common law jurisdictions albeit it is restricted to ‘. . . found in or on the shores of the sea or any tidal water”.41 It is notable that the deﬁnition of ‘wreck’ in the draft convention is consistent with the notion of jetsam, ﬂotsam, lagan and derelict being included as wreck. A related important term is ‘maritime casualty’ which is deﬁned as ‘. . . a collision of ships, stranding or other incident of navigation or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or its cargo’.42 Paragraph 4 of Article 10 of the draft convention is of relevance to salvage. It provides for the shipowner to contract with a salvor to remove the wreck determined to constitute a hazard. When the operation begins, the ‘Affected State’ may intervene. The deﬁnition of ‘Affected State’ is the state in whose ‘Convention area’ the wreck is located, and ‘Convention area’ means the exclusive economic zone (EEZ). Under paragraph 4 of the same Article, the intervention, however, is limited to the extent necessary to ensure that the wreck is removed expeditiously with due regard to safety and environmental considerations. Under paragraph 5, before the wreck removal operation begins, the coastal state in question can lay down certain conditions for the removal but only to the extent necessary to ensure that the removal activity is consistent with safety and environmental considerations. These are both important provisions from the salvor’s perspective. The object here is to expedite the wreck

39

Sir Edward Coke in Sir Henry Constable’s Case (1601), 5 Co. Rep. 106a. Also included as wreck were deodands. Proshanto K. Mukherjee, Maritime Legislation (Malmö, WMU Publications, 2002), 36. 41 See, e.g., s. 268 of the Cayman Islands Merchant Shipping Law, 1997, supra note 33, and s. 366 of the Malaysia Merchant Shipping Ordinance, 1952, supra note 33. 42 See Annex to IMO Doc. LEG 90/5. 40

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removal operation and to lay down conditions for removal without compromising safety and environmental protection. The onus, it would appear, is on the coastal state concerned to exercise its right of intervention and laying down of conditions without defeating the above object and purpose.

SALVOR’S INTERESTS Practical Issues To meaningfully discuss the practical issues, it is perhaps worthwhile recalling the ‘Castor’ incident. The tanker, laden with 36,000 tons of petroleum, experienced adverse weather conditions while navigating off the coast of Morocco. A severe crack developed across the main deck in way of the cargo tanks. Fearing an explosion, the ship radioed for assistance whereupon a professional salvor responded by evacuating the crew off the vessel and taking the vessel under tow. At great risk to themselves, the salvors attempted to plug the crack and do whatever they could to minimise the risk of explosion. The salvors then sought sheltered waters to carry out a ship-to-ship transfer of the cargo. This was necessary to make the salvage operation successful. A port of refuge was not needed, simply a sheltered location relatively less exposed to the wind and waves. Eight states bordering the Mediterranean Sea refused the salvors’ request turn-by-turn resulting in the vessel aimlessly wandering around the semi-enclosed sea for six weeks, endangering ship, cargo and salvage crew. Eventually, after the weather subsided, a ship-to-ship transfer operation was carried out off the Libyan coast, and ship and cargo were successfully salved. In this case, all ended well by sheer luck. Had fortune not been as kind, not only would the ship and cargo have been lost, but the lives of the salvage crew would have been in great danger. This incident vividly exempliﬁes the need for balancing of interests between the coastal state and the salvors. The position of the International Salvage Union (ISU) in this regard is that it recognises the rights and powers of the coastal state at international law, but at the same time it emphasises that coastal state interests are better, if not best, protected by providing refuge to a casualty under salvage. Furthermore, the marine environment is not restricted to the waters close inshore. It extends beyond the territorial sea, and apart from the environmental concerns, salvors’ lives are at great risk in situations where only they are responsible for minding the casualty.43 Often, in the types of situations described above, coastal state authorities are poorly advised. Frequently, there is lack of experience among decision-makers 43

Archie Bishop, “Salvors – The Need for Responder Immunity and Places of Refuge”, Lloyd’s List Events, April 2002, at 8–9.

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and their advisers and rational decision-making is clouded by bias. Political considerations predominate over professional and technically sound advice. According to the ISU, there are individuals with the requisite experience and credentials whose expertise can be sought. Its suggestion is that states should consult with their salvage, shipping and insurance industries and develop a list of experts that would include salvors, structural engineers, naval architects, ocean scientists and environmentalists. IMO can be the repository of such a list, and the list can be made available to any government if advice and information is needed in an emergency situation.44 Expertise of the right kind and associated experience is invaluable. In the ‘Castor’ incident, for example, contrary to the assumptions on which governments based their decisions not to grant shelter, the risk of explosion was not great because the cargo tanks were over rich and therefore were not in an explosive state. If an explosion did occur, it would have been localised and the perimeter of the resulting debris would have been no more than 150 metres. The risk of leaking cargo igniting would have been rather low, and any unignited cargo would have quickly evaporated. At any rate, those exposed to the highest level of risk would have been the salvors themselves working close to the ship. As mentioned earlier, the salvors did not seek anything other than a sheltered spot within a few miles of any isolated coast area. There was no likelihood of any danger to persons or property ashore. Had advice such as this been available to the governments in question, probably shelter would not have been refused, and any threat of environmental damage would have been quickly brought under control. By contrast, the incident involving the chemical carrier ‘Bilboa’ is exemplary. In October 2001 while on passage through the North Sea outside any national jurisdiction, the vessel encountered gale force winds. Water entered the holds; contact with the cargo caused a chemical reaction and a hatch blew off. Following consultations with appropriate experts, it was determined that there was no material threat to persons or the environment. A place of safety was given which undoubtedly reduced the potential for more serious damage to the vessel. It is of interest to note that the Appeal Arbitrator in the subsequent LOF arbitration found that there was a risk of the ship running aground on the Spanish coast near Cape Palos and spilling 30,000 tons of oil. However, the spill would not have caused any “substantial” damage within the meaning of the Salvage Convention. The spill might have destroyed some ﬁsh, but the oil would have evaporated before causing any lasting damage to the local ﬁsh stocks. There were 100 tons of fuel oil in top tanks which would not have leaked if the vessel had run aground. At any rate, the vessel could have been ﬂoated safely. Thus the Article 14.2 claim failed.45 44 45

Ibid., at 10. Personal communication with Archie Bishop, Legal Adviser, International Salvage

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Legal Issues Liability of Salvor for Negligence As one commentator has stated, the ‘fainthearted’ should not be in the salvage business. The salvor’s is a high-risk profession that is even more daunting than that of the seafarer. Salvors take their tugs into waters and situations more treacherous than anything within a prudent mariner’s contemplation. Attempting to connect a towing hawser to a vessel adrift in stormy seas or manoevering in shallow waters to disengage a stranded vessel and in the process risk running itself aground, are part of the daily existence of salvors and salvage tugs.46 All of this the salvor must endure under the hardship of being refused a place of refuge when he desperately needs one, the tenuous regime of ‘no cureno pay’ and the risk of liability for damage to the property being salved. Historically, even from Rhodian times, the salvor has never enjoyed immunity from liability although the question has been intensely debated since the 19th century. In this regard, one position, which is largely attributable to public policy, discounts any duty of care owed by a salvor. The other position acknowledges the existence of such a duty only in the event of gross negligence.47 The immunity engendered by public policy has, over time, been tempered by the corresponding consideration that a salvor should be held liable for negligence if he has failed to exercise reasonable care and acted in an unscrupulous manner.48 The decision of the House of Lords in The Tojo Maru49 settled the matter of liability for salvorial negligence when it conﬁrmed that a salvor owed a duty of care to exercise professional skill in carrying out the salvage operation and ruled that owners had a right to counterclaim for negligence. In the words of the late Professor Cadwallader: The stark outcome of the House of Lords’ decision is to render the successful but negligent salvor liable to the owner in damages. If an award is made, it must be assessed on the assumed salved value of the ship disregarding any subsequent negligence of the salvor. In this way the salvor is penalised only once for the breach, a decision which seems fair in law and equity.50

Union and former Senior Partner, Holman, Fenwick and Willan, London Solicitors, 13 July 2005. 46 Richard Shaw, “Places of Refuge: The Debate Moves On”, 10 Journal of International Maritime Law, No. 2 (2004), 174 at 181 (hereafter Shaw, The Debate Moves On). 47 D. R. Thomas, “Salvorial Negligence and its Consequences”, 2 Lloyd’s Maritime and Commercial Law Quarterly, 1977, 167 48 Brandon J. in The St. Blane, [1974] 1 Lloyd’s Rep. 557 at 560. 49 [1971] 1 Lloyd’s Rep. 341 (H.L.). 50 F. J. J. Cadwallader, “The Salvor’s Duty of Care”, (1973), 1 Maritime Studies & Management 3, at 14.

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It is notable that in the Court of Appeal, Lord Denning M.R. held that the salvors were not liable for negligence and that owners were therefore not entitled to counterclaim for damages. He held that owners ‘. . . can use it as a shield against paying a high salvage reward, but not as a sword to pierce the salvors to the heart’.51 The importance of the House of Lords’ decision in this case is that it is binding as authority on salvage operations carried out under LOF, which is governed exclusively by English law, and most salvage services are provided pursuant to the LOF.52 The 1989 Salvage Convention afﬁrms this position as well by providing expressly in Article 8(1)(a) that a salvor owes a duty of care to the owners of property being salved. A breach of that duty will make the salvor liable for damages regardless of whether or not the salvage operation is successful and the saved property has a salved value. In the event of a pollution incident, the refusal of a coastal state to grant a place of refuge or shelter is likely to impinge on the potential liability of a salvor under the Tojo Maru decision and the corresponding provision in the 1989 Salvage Convention as noted above. The damage allegedly caused by the negligence of the salvor may well be attributable to the failure of the coastal state to provide refuge. This issue will be explored later in the chapter.

Third Party Action An issue related to liability for salvorial negligence is the potential liability of a salvor in respect of third party actions. As distinguished from the liability position of the salvor to the owner of property being salved, it is notable that both the Civil Liability Convention, 199253 (CLC Convention) and the Hazardous and Noxious Substances Convention, 199654 provide for salvorial immunity unless it can be shown that the ‘. . . damage resulted from their personal act or omission, committed with intent to cause such damage, or recklessly and with knowledge that such damage would probably result’.55 This is a virtually watertight provision, which in obvious recognition of the salvor’s hazardous profession, coupled with his indispensable service, extends to him the beneﬁt of

51

[1969] 3 All.E.R. 1179 at p. 1186. (C.A.). Draft Convention on Wreck Removal, supra note 38, at 181. 53 International Convention on Civil Liability for Oil Pollution Damage, London, 29 November 1969, 973 U.N.T.S. 3; 1992 U.K.T.S. 1996 No. 87, as amended by the protocols of 1976 and 1992 (hereafter CLC Convention). 54 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 2 May 1996, 35 I.L.M. 1406 (hereafter HNS 1996). 55 Supra note 53, Article 3, paragraph 4 (d) and (f) of CLC 1992. 52

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immunity from third party liability. The third party in this case is the pollution victim who, in the absence of a provision such as the one cited above, may pursue the salvor if other remedies are exhausted, e.g., depletion of the limitation fund under the relevant convention or national legislation. Indeed, in such a situation, without the beneﬁt of statutory protection, the salvor may ﬁnd himself in the unenviable position of having to defend multiple actions instituted by claimants in different jurisdictions. Needless to say such ‘responder immunity’ provisions are of great advantage to the salvage industry. The fourth question in a CMI questionnaire addressed to CMI member maritime law associations related to whether ‘any liability would attach to a person other than a shipowner providing assistance to the ship in distress’.56 The obvious reference is to a salvor. The following are some interesting observations in this regard.57 Canada, Denmark, Japan, Korea, Malta and The Netherlands made exclusive references to salvors. Canada remarked that the salvor ‘could be’ liable and then referred to the typical convention clause cited above, probably implying that liability would attach only if the salvor acted wilfully and recklessly, etc. Denmark stated that salvors would be liable if they were grossly negligent. Given that Denmark is a party to the CLC Convention, the response possibly implies that the relevant convention provision provides for immunity for conduct below the standard of gross negligence. Japan stated that under the CLC Convention salvors cannot be liable, probably implying that the immunity provision is watertight. Korea referred to salvorial liability under ‘the general civil law theory’. Malta stated that salvors could be liable unless the CLC Convention applied probably implying that the convention provision provides virtually watertight immunity. The Netherlands, another state party to the CLC Convention, stated that salvors may have liability if they are negligent, possibly implying that the convention provision is a prescription for negligent conduct (as distinguished from gross negligence). China and the United Kingdom made references to salvors as examples of ‘others’. China stated that salvors would be liable for ‘an intentional act or negligence’ possibly implying that the convention provision views intention as an ingredient of negligence. The United Kingdom, after referring to salvorial liability for failing to comply with directions (presumably under Article 9 of the Salvage Convention), and under ‘ordinary tortious principles’ and Article 8 of the Salvage Convention (obviously relating to the duty of care owed to the owner), then pointed out the immunity provision in the CLC Convention.

56

See Appendix to “Report on Places of Refuge Submitted by Comité Maritime International (CMI) to the IMO Legal Committee”, CMI Yearbook 2003 (Antwerp, CMI, 2003), at 324 (hereafter Appendix to CMI Report). 57 Ibid., at 324–326.

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Australia made no direct reference to salvors but referred to ‘others’. Brazil, Indonesia and Slovenia referred only to the shipowner’s liability under the pollution conventions. India remarked that operators, masters and ship agents would be liable under domestic law, while Italy referred to the liability of a shipowner to a salvor under domestic law. Finland referred to liability under relevant conventions but not under domestic tort law. Israel indicated an absence of national legislation and Spain, an absence of ‘legal guidelines’ covering this issue. Unfortunately, however, the International Convention on Civil Liability for Bunker Oil Pollution Damage, 200158 does not contain an immunity provision, although a recommendation was made at the diplomatic conference that state parties in giving effect to the Convention domestically should consider enacting legislation exempting the salvor from liability to third parties. It is feared by the salvage industry that at least those states who opposed the inclusion of the immunity provision in the Convention will most likely ignore the recommendation.59 In the context of these responses, the question arises as to what impact would refusal of a place of refuge have on a salvor’s exposure to potential liability to third parties where the Bunker Spill Convention is applicable. A coastal state having suffered pollution damage from a bunker oil spill will likely take full advantage of Article 3, paragraph 6, which provides ‘Nothing in this Convention shall prejudice any right of recourse of the shipowner which exists independently of this Convention’. In other words, the coastal state can refuse to grant a place of refuge and then channel its claims through the shipowner who in turn can sue the salvor.60

Criminalisation of Salvor Salvors, understandably, are increasingly concerned about the growing phenomenon of criminalisation. They are just as much vulnerable to penal sanctions being imposed on them as are seafarers, even without trial as was abundantly demonstrated in the ‘Tasman Spirit’ incident.61 The salvor has to endure this state of affairs even after attempting to prevent or to mitigate pollu-

58

International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, London, 27 March 2001, IMO Doc. LEG/CONF.12/19, 27 March 2001. 59 For more details on this particular issues see Bishop, supra note 43, at 5–7. 60 Ibid., at 7. 61 Among the infamous ‘Karachi eight’ was a salvor. See Roger Hailey, “Tasman Spirit ﬁght goes on after crew release says American P&I Club”, Lloyd’s List, 31 March 2005. Incidentally, it is stated in this report that even after the P&I Club had paid up for wreck removal and settled salvage and SCOPIC claims, the dispute over pollution compensation claimed by Pakistan was, as of that date, ‘far away from a ﬁnal settlement’.

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tion damage to the best of his ability in a hostile maritime environment and in the face of a hostile port or coastal state authority, in addition to being refused shelter or a place of refuge. In a recent post-‘Prestige’ incident involving a foreign dry cargo ship, Spanish maritime rescue authorities threatened to handcuff the master when, in response to instructions to make fast to one of the authorities’ tugs, the master pointed out that the vessel was no longer in danger. The services of a tug belonging to a major salvage company had already been contracted for under LOF 2000. Subsequently, ofﬁcials boarded the vessel with armed guards and threatened the master to sign certain documents written solely in Spanish under pain of arrest if he did not comply. It transpired that the documents related to a ﬁne and the cost of tugs exemplifying an imposition of ‘state salvage’ regardless of private arrangements made with commercial salvors by the shipowners. According to the P&I Club of the shipowners, ‘. . . salvors might have to think twice before offering their services . . . as they could ﬁnd themselves forcibly removed’.62 In another report, IMO Secretary-General Mitropoulos remarked, ‘. . . there remained serious concerns over the detention of those involved in salvage operations, which had a detrimental effect on the willingness of salvage and cleanup specialists to respond quickly to any pollution incident’.63 In relation to the European Union’s proposed ‘Oil Spill Directive’, Mike Lacey, Special Adviser to the ISU, has commented that gross negligence or criminality would inevitably be cited in pollution cases. He remarked that salvors should not be compelled to constantly ‘look over their shoulders’ in their attempts to provide assistance. There should be some kind of immunity. Fines and jail sentences will not prevent these types of incidents, and this is not the way forward.64 What is perhaps less known about the fate of salvors is their potential exposure, in some jurisdictions, to strict liability for violation of penal provisions. In the United Kingdom, for instance, section 85(1) of the Water Resources Act provides that ‘[a] person contravenes this section if he causes or knowingly permits any poisonous, noxious or polluting matter or any solid waste matter to enter any controlled waters’.65 This formulation would appear to point to a mens rea offence, but the courts have held otherwise. In Empress Car Co.

62 James Brewer, “Master threatened with handcuffs and arrest”, Lloyd’s List, 16 February 2005. 63 High O’Mahoney, “Mitropoulos airs criminalisation concerns”, Lloyd’s List, 29 March 2005. 64 Rob McKay and Helen Hill, “Brussels oil spill law defence fails to convince owners”, Lloyd’s List, 4 April 2005. 65 Water Resources Act 1991 (UK) 1991, c. 57.

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(Albertillery) v. National Rivers Authority, the House of Lords (per Lord Hoffman) held this provision to constitute a strict liability offence independent of intention, negligence, fault or knowledge on the part of the perpetrator.66 As curious as it may seem, the word ‘knowingly’ in this provision relates only to permitting the entry of any poisonous, noxious or polluting substance into controlled waters. If a person ‘causes’ this to happen, he is strictly liable regardless of whether or not he had knowledge of its consequences. The Court also held the prosecution need not prove that the accused was the immediate cause of the pollution. He would still be guilty if he caused it in some way; it would be sufﬁcient regardless of the fact that the immediate cause was the act of a third party.67 As a consequence of the above dictum, a salvor could well be charged as the defendant in a scenario where the shipowner as the third party is the principal cause of the pollution, and be held strictly liable.68 If, under the circumstances, the secondary cause of the pollution left the vessel in need of a place of refuge and it was refused, a question may arise as to whether the entity refusing refuge can be charged as well. Although refuge was not involved, it is notable that following the grounding of the ‘Sea Empress’ and the resulting pollution in 1998, the Milford Haven Port Authority was prosecuted and ﬁned under the Water Resources Act. The salvors in that incident could have been prosecuted as well, although that did not happen.69

Liability of Port or Coastal State for Refusal of Refuge In contrast with the seemingly precarious liability position of the salvor observed above, the liability of the port or coastal state authorities needs to be examined as well where a place of refuge is refused. If such a state unreasonably refuses a vessel in distress to enter a place of refuge or sheltered waters under its jurisdiction, its liability under public international law is at best uncertain.70 As recognised in the Creole71 and the Kate A. Hoff (The Rebecca)72 cases, customary international law gives a right to a ship in distress to enter a port of refuge or sheltered internal waters to preserve human life. It is unlikely that the principle can be extended to the case of a polluting ship in distress where

66 67 68 69 70 71 72

[1998] 1 All E.R. 481 (H.L.) at 489. Ibid., at 489 and 492. See Bishop, supra note 43, at 3 where he sets out some hypothetical scenarios. Ibid., at 4. Shaw, International Law, supra note 21, at 166. (1853), Moore, Int. Arb. 4375. (1929) 4 RIAA 444.

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human life is not in danger. Indeed, if measures have been taken to save endangered lives on board, the better view is that it would be lawful for the coastal or port state to refuse entry to a polluting vessel.73 It has been suggested that it is a matter of national law whether a salvor can take legal action to require a port authority to accept a ship requesting refuge.74 The kind of legal action referred to above would, in a common law jurisdiction, be in the nature of proceedings in administrative law where a remedy such as certiorari or mandamus would be sought. Of course it is well established that, as a matter of practicality, it will be the salvor of a vessel in distress that will actually request entry to a place of refuge because the salvor likely would have been engaged already.75 In terms of civil liability, there are two aspects relating speciﬁcally to whether a negligence action against a port or coastal state authority can be maintained. The ﬁrst is action by victims of pollution damage who are likely to claim that the damage they suffered was due to the polluting vessel being allowed refuge. The other would be action by salvors claiming that refusal of refuge led to losses by way of salvage or special compensation, or SCOPIC remuneration being denied or reduced. In either case, in a common law jurisdiction a cause of action framed in negligence will ordinarily be subject to several factors including the difﬁcult question of causation as well as questions of contributory negligence and inevitable accident in the agony of the moment.76 In some jurisdictions, contributory negligence is a complete defence; in others, liability will be apportioned.77 The plaintiff must, in any event, show that the defendant coastal state in refusing refuge had reasonably foreseen the damage allegedly suffered by the plaintiff.78

73 R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd edition (Manchester, Juris Publishing, 1999), 63. See also the decision in the Long Lin, Nederlands Juristenblad 1995, No. 23, at 299. 74 G. Darling and C. Smith, LOF 90 and the New Salvage Convention (London, LLP, 1991), 63. 75 Shaw, The Debate Moves On, supra note 46, at 181. 76 Stuart Hetherington, “Prestige – Can Law Assist?”, CMI Yearbook 2003 (Antwerp, Comité International Maritime, 2003), 361. 77 Under the CLC/Fund regime, refusal of a place of refuge by a state claiming compensation for pollution damage may give rise to a viable defence against the strict liability of the polluter either wholly or partially depending upon the circumstances. It is notable however, that in respect of the ‘Prestige’ incident, no such consideration was given by the IOPC Fund in relation to the Spanish Government’s request for payment which was made in December 2003. See Shaw, The Debate Moves On, supra note 46, at 180. 78 The Wagon Mound No. 2 [1966] 2 All E.R. 709 at 711–713 (P.C.). In an action by a pollution victim against a polluting vessel, where the governing regime is one of strict liability, whether under an international convention or domestic legislation, which is most likely the case, there will be no need to prove fault on the part of the polluting ves-

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The issue of causation, as stated by one commentator is ‘notoriously difﬁcult to apply in practise’.79 It may be subject to the so-called ‘but for’ test which is judicially accepted in some jurisdictions and rejected in others, although not always categorically. In the case of a pollution victim, the court is likely to focus on the cause of the pollution in the ﬁrst place and then determine whether the refusal of a place of refuge was a novus actus interveniens (intervening act) whereby the chain of causation was broken.80 If that is determined to be the case, the coastal state may be held liable, all other things being equal. In other words, the refusal of refuge may be considered to be a new cause of the damage. Where the claimant is a salvor, he could quite conceivably argue ‘but for’ the fact that a place of refuge was refused, the pollution damage would have been contained, the salvage operation would have been successful, and the salvor would have earned a reward; or the damage would have been prevented or mitigated, and he would have received special compensation under the Salvage Convention or remuneration under SCOPIC. The salvor might succeed if the ‘but for’ test is accepted, which may or may not be the case. A salvor may also argue that a state that is party to the Salvage Convention has acted negligently by breaching its responsibilities under Article 11 of the Convention.81 But does a breach of Article 11 give rise to a civil action? The answer may be an emphatic ‘no’ since under Article 11, the state in question need only ‘take into account the need for co-operation among salvors, etc’.82 On the other hand, the words ‘. . . in order to ensure the efﬁcient and successful performance of salvage operation . . .’ could be construed as putting a positive burden on the coastal state to take into account the need for co-operation among salvors, the ultimate purpose being to save life and property and to prevent environmental damage. An allegation of negligence against a state refusing to give a polluting vessel a place of refuge is also associated with the duty of mitigation, a principle that is recognised to be of universal application.83 Where the salvor of a polluting vessel is engaged in preventing or minimising pollution damage to a coastal state, that state is equally under a legal duty to mitigate its losses; a state that

sel; only damage need be proven, and therefore the requisite ingredients of negligence will be by-passed. 79 The Nagasaki Spirit, supra note 17, at 166. 80 Hetherington, supra note 76, at 368–369. Indeed that is what a defendant polluter would argue in defence to escape liability but under a strict liability regime, which again would most likely be the case, he would not succeed. 81 Ibid., at 370. 82 Ibid., at 370–371. 83 Shaw, International Law, supra note 21, at 165. Under the law of marine insurance, the duty of an assured to sue and labour is similar to the duty to mitigate losses.

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fails to do so may be deprived of compensation, or it may be reduced.84 Under the CLC Convention, the owner of a polluting ship can be wholly or partially exonerated from liability if he proves negligence on the part of a claimant who suffered pollution damage.85 The following comment of Stuart Hetherington aptly summarises the issue: Where, however, a State refuses entry to a place of refuge and that decision can be seen to have been made negligently, the State concerned will not only fail to recover all the damage which it sustains by reason of any ensuing pollution or other damage, but may be liable to compensate third parties who suffer damage. Once again, difﬁcult questions of causation will arise. A claimant who wishes to sue the port authority that has refused access would, presumably, have a difﬁcult burden of showing that, had access been granted to the stricken vessel, the ensuing damage would not have been occasioned. That would require a great deal of speculation by a court as to what would have happened in the event that a port of refuge had been provided. It would, no doubt, be difﬁcult for a Court to reach such a conclusion if the damage sued upon took place at or shortly after the time at which a place of refuge had been denied. If, however, a considerable time had elapsed such a conclusion might be easier to reach.86

In the CMI questionnaire referred to earlier, the second question related to acceptance of liability by countries of member maritime law associations in the event a place of refuge was denied or refused. The following is a summary of nineteen responses: Many responders anticipated that there could be a liability on a Government or Authority which acted negligently in declining a Place of Refuge provided there is a sufﬁcient degree of causative connection between the refusal and the ensuing damage. It has been pointed out in some responses that the immunity provisions in the CLC could apply if the Government or Authority concerned sought to suggest that their actions were taken as preventive measures. An issue as to whether the actions taken were done recklessly would then arise.87

84 See “CMI Guidelines on Oil Pollution Damage”, Sydney, 2–8 October 1994, <www.uctshiplaw.com/cmi/cmioil.htm>, 29 July 2005, Part I, para. 2, which provides ‘Compensation may be refused or reduced if a claimant fails to take reasonable steps to avoid or mitigate any loss, damage or expense’. 85 See CLC Convention, supra note 53, paragraph 3 of Article III. There are similar provisions in the Fund and HNS Conventions. 86 Hetherington, supra note 76, at 369. 87 Appendix to CMI Report, supra note 56, at 328.

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Legal Position of Salvor under LOF and Salvage Convention Under LOF 2000, parties may agree to have a place of safety entered in Box 3 of the form.88 The salvor is obliged to take the property being salved to the place identiﬁed in Box 3 or to some other place to be agreed later. If Box 3 remains empty and there is no subsequent agreement as to the place where the property is to be taken, the salvor must take it to a place of safety.89 It can be assumed that a place of safety as referred to in the LOF is a place of refuge within the context of this discussion.90 Several issues can be contemplated in terms of this obligation of the salvor. If the place identiﬁed in Box 3 is one for which permission to enter must be obtained from the relevant coastal state authorities, and entry is refused, the salvor will be unable to perform his contractual obligation. If Box 3 is not ﬁlled and there is no subsequent agreement, it would be up to the salvor to decide on an appropriate place of safety. Again, his decision will have to be made reasonably with due regard to whether his chosen place will require entry permission from the local authorities. While Clause F (iii) requires the shipowner to fully co-operate with the salvor in obtaining entry to the place of safety, if such permission is required and not granted and there is no alternative place of safety, what will be the legal position of the salvor? These questions raise the issue of the contractual obligation of the salvor. In both cases mentioned above, the salvor will be in breach. In the ﬁrst case, however, reasonableness of designating a place of safety which the parties knew or ought to have known would be subject to coastal state approval, will be at issue. In a common law jurisdiction, under the general law of contracts the salvor may be able to successfully argue impossibility of performance or frustration in both cases. However, frustration is not a valid plea if it is simply difﬁcult (as opposed to impossible) for the salvor to perform the contract.91 It is the duty of the salvor to bring the casualty out of the difﬁcult situation, and in that attempt, there may be a waiting period before the vessel can enter the agreed place of safety. At any rate, if the contract is frustrated due to the vessel being unable to enter the agreed place of safety, the salvor will not earn a reward. In such cases, the LOF does not impose any duty on the salvor, expressed or implied, to take the vessel to an alternative place of safety.92

88 The 2000 version can be downloaded from the LOF website, <www.lloydsagency.com/agency/agency.nsf/vwAll/7CD5023502679E8A80256B56005C286F? OpenDocument>, 29 July 2005. 89 Ibid., see Clause A. Contractor’s basic obligation in LOF 2000. 90 Chircop, supra note 31, at 48. 91 Tsakiroglou & Co. Ltd. v. Noblee Thorl GmbH, [1962] A.C. 93. 92 Francis D. Rose, Kennedy and Rose The Law of Salvage, 6th edition (London, Sweet & Maxwell, 2002), para. 1067 at 489.

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A salvor minding a casualty that is unable to enter a place of refuge is in the position of a bailee, who under English law is precluded from abandoning the casualty. Furthermore, if after the LOF is frustrated, the salvor then brings the casualty to a place of safety, he may rightfully claim a reward under the customary law of salvage.93 As far as the speciﬁc contract is concerned, assuming it is LOF 2000, under Clause A the salvor is obliged to use his ‘best endeavours’ to salve the property and to take it to a place of safety. Under Clause H, his services shall be ‘deemed to have been performed’ when the property is in a ‘safe condition’ in the place of safety. Even if the property is damaged or in need of maintenance, it will be considered to be in safe condition if the salvor is not required to stand by it to satisfy the requirements of a coastal state authority, or continued skilled salvage services are no longer necessary to avoid the property being lost or suffering further signiﬁcant damage or delay. The question is whether in a situation where refuge has been refused, the ‘deemed performance’ requirement is discharged once the salvor has used his ‘best endeavours’. If the answer is in the afﬁrmative, the salvor would have performed his contractual obligations and would not be in breach. However, neither the LOF nor the Salvage Convention provides a clear answer to this problem.94

CONCLUSION There is obviously an aspect of commercial interest from the salvor’s perspective as noted earlier. His salvage reward, be it under LOF or customary salvage, and special compensation or SCOPIC remuneration will depend on the degree of success he achieves. His motivation for success is inextricably tied to his ﬁnancial interest, and public policy is on his side as regards incentives that will keep him in business so that his services are available on an on-going basis in the face of future maritime risks. There is, however, a potential conﬂict between the salvor’s commercial interests and the interests of the coastal state in terms of protection of its coastline from pollution damage in the event of a casualty. In this regard, Article 9 of the Salvage Convention recognises the right of the coastal state to give directions in relation to salvage operations.95 There is also an element of commercial interest from the perspective of the coastal state authority. One question is whether port authorities should be enti-

93

Ibid. See The Massalia [1959] 1 W.L.R. 787; afﬁrmed [1961] 2 Q.B. 276. Chircop, supra note 31, at 35 and 48. At 48 it is suggested that the Salvage Convention should be amended. The point is also made that apart from his contractual obligation the salvor would also be interested in the safety and welfare of his crew so long as the vessel in distress continues to be at sea. 95 See comments of Richard Shaw in supra note 46, at 181–182. 94

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tled to salvage rewards for offering refuge to distressed ships. In several jurisdictions, government authorities who carry out salvage and assistance with tugs and other equipment already are entitled to salvage remuneration under domestic law, even if the service is not offered voluntarily as required under customary law, but under compulsion of ofﬁcial duty. This in itself is an incentive that translates into a commercial interest from the perspective of the port authority. Some are of the view that port authorities should not be in the business of receiving salvage awards. But, as stated by one commentator, the objective of entitling a port authority to a fair salvage reward is that it serves as an incentive for the port to offer refuge and to lend co-operation to ships in distress. The object is not to encourage ports to view granting refuge as an attractive way to earn revenue.96 If states are too ﬂippant about denying a place of refuge, it will obviously discourage salvors. A return to the days when salvors refused to salve ‘leper ships’ is certainly not desirable. In the context of the new EU Directive, the point is already being made that ‘salvors may well hold back from intervening in EU waters if there is an actual or possible escape of oil’.97 An appropriate balance of interests should be viewed in terms of rational management and sound decision-making.98 The perils of denying refuge, as demonstrated in the numerous incidents cited above, is often more environmentally damaging than allowing refuge. The balanced judgement that a coastal state authority has to make as to whether or not to grant refuge can be problematic given the diversity of government interests that are frequently in conﬂict. The political dimension can certainly add to this complexity. The solution may be to appoint a single individual decision-maker acting as a ministerial representative who is familiar with these conﬂicting interests, and who has at his disposal persons with the necessary expertise in salvage, both professional and legal.99 Pursuant to the recommendation in the Report of Lord Donaldson’s Review of Salvage and Intervention and their Command and Control100 in the United Kingdom, a Secretary of State’s Representative (SOSREP) has been appointed as the focal point in government to interface with shipowners and salvors.101 It is perhaps a good model for other states to follow.

96

See Hooydonk, supra note 1, at 442–443. ISU special advisor Michael Lacey’s statement to ISU associate members’ conference, reported in Fairplay, 24 March 2005, at 13. 98 See Hooydonk, supra note 1, at 432. 99 Shaw, International Law, supra note 21, at 167. 100 Lord Donaldson, Review of Salvage and Intervention and their Command and Control, HMSO, 1999, Cmnd. 4193. 101 Ibid., at 167. For a further discussion of the UK SOSREP role, see Chapter 16. 97

Chapter 11 Places of Refuge: Compensation for Damage Perspective Gotthard Mark Gauci

INTRODUCTION The topic of ‘places of refuge’ and ‘leper ships’1 has moved to the top of the agenda in the discussion of maritime issues. The incidents of the ‘Erika’ (France 1999), the ‘Prestige’ (Spain 2002), and the ‘Castor’ in the Mediterranean have attracted the attention of the International Maritime Organization (IMO), Comité Maritime International (CMI), the European Union, national and other institutions.2 On certain occasions, the admission to internal waters of a vessel in distress – possibly a leper ship – has caused

1

The term ‘leper ship’ is used to refer to a ship that is shunned by port authorities and refused entry into potential places of refuge. 2 See E. van Hooydonk, “The Obligation to Offer a Place of Refuge to a Ship in Distress”, CMI Yearbook 2003, (Antwerp, Comité Maritime International, 2003), 403 at 403–404.

299 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 299–319. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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damage to the admitting state: the ‘Kowloon Bridge’, wrecked in West Cork, spilled bunker oil causing damage to ﬁsheries and to the tourism image of that area.3 The law relating to ports of refuge, although of ancient vintage, does not provide for a one-stop solution; it is scattered amongst various sources. In this chapter the aim is to look at the remedies available at common law, international law, and in terms of the international pollution damage conventions for damage caused in the port of refuge scenario. The issue of ‘wrecks’ in the context of places of refuge is addressed towards the end of this chapter.

COMMON LAW REMEDIES FOR DAMAGES IN THE PORT OF REFUGE SCENARIO The common law generally seems to be of doubtful utility in relation to compensation for pollution damage. It is also only of limited relevance in those contracting states where the international conventions referred to below are implemented in national legislation. However, general law remedies remain appropriate in relation to defendant parties – like classiﬁcation societies – which are not referred to as defendants in the said conventions. Similarly port authorities could be defendants in an action in negligence, as can be salvors. Moreover, general law remedies continue to be relevant in cases of action in recourse which, of course, remain untouched by the conventions, and likewise are likely to be restricted by limitation of liability. For example, in the case of the oil spill from the ‘Sea Empress’,4 one could easily envisage an action in recourse on the basis of the tort of negligence by the International Oil Pollution Compensation Fund (IOPC Fund) and shipowner – strictly liable in terms of the conventions discussed below – against the port authority of Milford Haven in respect of damages. Indeed in separate regulatory proceedings, the port authority was found liable as a cause of the pollution under section 85 of the Water Resources Act 1991.5 There have been a number of oil pollution damage cases in common law but the outcome, as will be indicated in the cases discussed below, is undoubtedly unsatisfactory. Some of these cases deal with a ‘ship in distress’ if not a ‘place of refuge’ situation.

3 A. Chircop, “Ships in Distress, Environmental Threats to Coastal States, and Places of Refuge: New Directions for an Ancien Regime?”, 33(2) Ocean Development and International Law, 2002, 207 at 215. 4 ‘The Sea Empress’ grounded and discharged oil off the west coast of Wales in February 1996. 5 Environment Agency v. Milford Haven Port Authority, [1999] 1 Lloyd’s Rep. 673; Water Resources Act 1991 (UK), 1991, c. 57.

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In English pollution cases preceding the conventions regime, claims for damage akin to the above have been based on alleged torts – of negligence, nuisance and trespass. In Southport Corporation v. Esso Petroleum,6 Southport Corporation was suing the owners of the vessel ‘Inverpool’ and her master. The facts of the case were the following: the vessel, after encountering very heavy weather, had problems with her steering mechanism. The master took the decision to continue on course, even though this would involve tackling a dangerous channel, and later the vessel ran aground. A considerable part of the cargo of oil was jettisoned with a view to lightening the ship to ensure her safety and that of the crew. The plaintiff’s claim, which related to damage caused to the premises of Southport Corporation, was based on the torts of trespass, nuisance and negligence. The difﬁculties associated with the application of the law of torts to an oil spill damage claim can very well be appreciated by considering the variety of opinion given about such causes of action by the number of judges involved in this case, which was ﬁnally decided against Southport Corporation. Devlin J., in his decision,7 gave judgment for the defendants; it is stated in the judgment that there could be a cause of action based on private nuisance even though the oil did not emanate from adjoining land.8 The judge, furthermore, stated that the plaintiffs had a good cause of action in trespass or nuisance, and he dealt with the defences on these points. The ﬁrst related to the ‘trafﬁc rule’, which Devlin J. applied to this case to the effect ‘that owners whose property adjoins the sea, equally with owners whose property adjoins the highway, take the risk of damage done by users of the sea or of the highway who are exercising with due care their rights of navigation or of passage’.9 Devlin J. stated, also, that necessity, i.e., in relation to safety of the crew, was a defence.10 The said defences would not be successful in case of negligence of the ship. The plaintiff’s action failed because they failed to prove negligence. Devlin J. refused to apply the principle of an earlier collision case11 and held that the plaintiffs were required to prove negligence and that it was not a case where the onus of proof shifted to the effect that the defendants had to prove inevitable accident.12 The Court of Appeal13 reversed Devlin J.’s decision, and the plaintiffs were here successful in negligence. Singleton L.J. held that the plaintiffs produced

6

[1955] 2 Lloyd’s Rep. 655; [1956] A.C. 218. [1956] A.C. 222. 8 Ibid., at 224–225. 9 Ibid., at 227. 10 Ibid., at 228. 11 The Merchant Prince [1892] Probate Cases 179. The plaintiffs were using this case to argue that the defendants had the onus of proving inevitable accident. 12 Ibid., at 232. 13 [1954] 2 QB 182, Morris L.J. dissenting. 7

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evidence pointing to the negligence of the defendant and that ‘the case was not answered’.14 The said judge did not come to a conclusion as regards nuisance and trespass but held that necessity without negligence would defeat such claims.15 Denning L.J. similarly allowed the appeal in relation to nuisance or negligence.16 It was stated by Denning L.J. that it was not a case of private nuisance because ‘[i]n order to support an action on the case for a private nuisance the defendant must have used his own land in such a way as injuriously to affect the enjoyment of the plaintiff’s land’ and it was clear that ‘the discharge of oil was not a private nuisance, because it did not involve the use of any land but only of a ship at sea’.17 In relation to public nuisance, Denning L.J. stated that the oil spill in that case gave rise to a public nuisance,18 and that the defendants failed to discharge the burden of proof that the oil spill was ‘a necessity which arose utterly without their fault’.19 Morris L.J. agreed with Devlin J.20 The House of Lords reversed the decision of the Court of Appeal. Earl Jowitt did not decide on trespass or nuisance, but agreed that if oil was discharged in the interest of human safety, that would be a sufﬁcient answer to the claim based on trespass or nuisance.21 In relation to negligence, Earl Jowitt did not apply the rule of The Merchant Prince22 in relation to the burden of proof.23 Lord Normand stated that, in this case, the real issue was one of negligence and gave judgment for the defendants.24 Lord Morton of Henryton came to the conclusion that since there was no negligence on the part of the master, there could be no negligence on the part of the shipowners.25 Lord Radcliffe held that the defendants had successfully called enough evidence against the charge of negligence.26 Lord Tucker stated that he agreed with Denning L.J. in relation to trespass ‘since the discharge of the oil was not done directly to the foreshore but outside the estuary’.27 Lord Tucker, furthermore, applied the trafﬁc rule referred to earlier to the effect that the victim of pollution ‘cannot recover in trespass in the absence of negligence on the part of the person who has caused the damage’.28

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Ibid., at 194. Ibid., at 194. Ibid., at 202. Ibid., at 196. Ibid., at 197. Ibid., at 199. See, Ibid., at 210. [1956] AC 218 at 235. [1892] P. 179. Ibid., at 237. Ibid., at 238–239. Ibid., at 241. Ibid., at 244. [1956] AC 218, at 244. Ibid., at 244.

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A classiﬁcation society might prove to be tempting as a defendant in a primary action for pollution damage in a port of refuge situation, particularly as a result of the fact that its liability is not subject to global or speciﬁc limitation. In English law, however, success of the action would be an unlikely outcome as the two reported actions for common law damage – on the basis of negligent misstatement – against a classiﬁcation society were unsuccessful.29 It seems, however, to be the case that there may be a cause of action against such organisations in the case of personal injury.30 Whilst common law actions against classiﬁcation societies are substantially curtailed on the basis of lack of proximity between the society and the victim, actions in negligence against salvors are also largely cut short. The International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 1992) and the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (HNS 1996), unlike the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunker Convention) substantially protect salvors from a primary action for pollution damage.31 However, at common law, salvors are also, to an extent, protected against recourse action, since, in assessing whether a duty of care has been breached, courts in England take into account, inter alia, the risk and danger facing the salvor. It can be argued that English courts appear to have adopted an attitude of outright leniency towards salvor;32 one such particular instance is the case of The Saint Blane.33 This was a case of an action for negligence by the plaintiff who claimed that the master of the ‘Saint Blane’ carried out assistance operations in a negligent manner and that the sinking of the salvee’s vessel was caused by the said negligence. In his judgment, Mr Justice Brandon manifestly adopted a sympathetic attitude towards the defendant salvors and speciﬁcally stated that the fundamental policy of the law is ‘always to encourage, rather than discourage the rendering of such services’.34 In the case being referred to, 29

See The Morning Watch [1990] 1 Lloyd’s Rep. 547 and The Nicholas H [1995] 2 Lloyd’s Rep. 299. 30 See Perrett v. Collins and Others [1998] 2 Lloyd’s Rep. 255. 31 See: International Convention on Civil Liability for Oil Pollution Damage, London, 29 November 1969, 973 U.N.T.S. 3, as amended by the protocols of 1976 and 1992 (hereafter CLC Convention), Article III; International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 2 May 1996, 35 I.L.M. 1406 (hereafter HNS 1996), Article 7; International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, London, 27 March 2001, IMO Doc. LEG/CONF.12/19, 27 March 2001 (hereafter Bunker Convention), Article 1(3) and Article 3(1). 32 See G. Brice, Maritime Law of Salvage, 3rd edition (London, Sweet & Maxwell, 1999), §7.26. 33 [1974] 1 Lloyd’s Rep. 557. 34 Ibid., at 560.

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one of the salvee’s mistakes was considered to be a mere error of judgment and not a case of negligence; in the circumstances, this could be interpreted as an application of the principle of leniency by the courts.35 Moreover, a mistake attributed to the salvor in that case was considered not to be causative of the damage.36 The lenient attitude of English courts in relation to salvage may indicate a convergence of approach between English courts and those in the United States.37 The above cases, the Wagon Mound litigation,38 as well as more recent nonshipping cases39 indicate that the common law is not likely to provide a remedy for environmental damage in a substantial number of cases.

INTERNATIONAL LIABILITY CONVENTIONS AND THE PORT OF REFUGE SCENARIO If the port of refuge situation leads to an oil or hazardous or noxious substance pollution scenario, liability will, when certain geographical and other convention requirements are met, be imposed on the shipowner in terms of CLC 1992, HNS 1996 or Bunker Convention, and on the IOPC Fund, HNS Fund or the IOPC Supplementary Fund in terms of the Fund Convention 1992,40 HNS 1996, and the IOPC Supplementary Fund Protocol41 respectively. Liability is imposed for ‘pollution damage’ as therein deﬁned. In all instances, liability can be subject to a limit. The Bunker Convention, besides imposing limited liability on the registered owner of the vessel, also imposes limited liability on the ‘operator’ thereof.42 CLC 1992, HNS 1996, and Bunker Convention provide for

35

Ibid., at 561. Ibid., at 562. 37 See further: G. Brice, “The New Salvage Convention: Green Seas and Grey Areas”, 1990 Lloyd’s Maritime and Commercial Law Quarterly 32 at 53; G. Gauci, Oil Pollution at Sea, Civil Liability and Compensation for Damage (Chichester, Wiley, 1997), 189. 38 [1961] 1 Lloyd’s Rep. 1 and [1966] 1 Lloyd’s Rep. 657. 39 Cambridge Water v. Eastern Counties Leatherworks plc [1994] 1 All E.R. 53, and Hunter v. Canary Wharf [1997] 2 All E.R. 426. 40 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, London, 18 December 1971, 1110 U.N.T.S. 57, as amended by the protocols of 1976, 1984, 1992 and 2003 (hereafter Fund Convention). 41 Ibid., Protocol of 2003 to the International Convention on the Establishment of an International Fund for Oil Pollution Damage 1992 (hereafter IOPC Supplementary Fund Protocol 2003). 42 Ibid., see Art. 1, para. 3. 36

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the compulsory insurance of the shipowner.43 The conventions so far tried and tested in relation to ship-source oil pollution damage are CLC 1992 and the Fund Convention 1992, together with their precursors of 1969 and 1971.44 This leaves a substantial gap in damages that is not covered by compulsory insurance, and port and other authorities providing refuge to a vessel may at present feel inadequately secured. This point has been recently recognised by the International Group of Protection and Indemnity Clubs in a memorandum submitted to the Legal Committee of IMO.45 A draft standard form letter of guarantee has been proposed as a basis of a standard text in relation to appropriate security for the grant of refuge to a vessel until all the aforementioned conventions come into force.46 The probable maximum security to be stipulated is US$10 million.47

‘Pollution Damage’ in the Conventions ‘Pollution damage’ is deﬁned in the deﬁnition section of each of the aforementioned conventions, but all are silent in relation to recovery of ‘pure economic loss’. These conventions do elaborate on environmental damage, within the deﬁnition of ‘pollution damage’, and provide that compensation for such damage shall be restricted to loss of proﬁt and measures of reinstatement actually undertaken or to be undertaken. It is therefore arguable that insofar as loss of proﬁts is speciﬁcally referred to, pure economic loss should be recoverable. The IOPC Fund Claims Manual refers to pure economic loss and provides parameters within which recovery is permissible. It provides that such claims are admissible only ‘if they are for loss caused by contamination’48 and elaborates further that: To qualify for compensation for pure economic loss, there must be a reasonable degree of proximity between the contamination and the loss or damage sustained by the claimant. A claim is not admissible for the sole reason that the loss or damage would not have occurred had the oil spill not happened. When considering whether the criterion of proximity is fulﬁlled, the following elements are taken into account:

43

CLC Convention, supra note 31, Art. 7; HNS 1996, supra note 31, Art. 12; Bunker Convention, supra note 31, Art. 7. 44 It is to be noted that the IOPC Supplementary Fund Protocol 2003 came into force on 3 March 2005. 45 IMO Documentation: LEG 89/7/1, 24 September 2004. 46 Ibid., §6. 47 Ibid. 48 International Oil Pollution Compensation Fund 1992 (IOPC), Claims Manual, 2002, 24.

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Chapter 11 • The geographic proximity between the claimant’s activity and the contamination • The degree to which a claimant was economically dependent on an affected resource • The extent to which a claimant had alternative sources of supply or business opportunities • The extent to which a claimant’s business formed an integral part of the economic activity within the area affected by the loss. The IOPC Fund takes into account the extent to which a claimant was able to mitigate his loss.49

There have been numerous cases where the IOPC Fund allowed recovery for pure economic loss. For instance, in the case of the ‘Tanio’ oil spill in 1980, the IOPC Fund was quite liberal in paying out claims to hoteliers whether they operated from the middle of town or in a seaside resort.50 The Executive Committee of the IOPC Fund in its 35th and later sessions faced the problem of claims for pure economic loss in relation to the ‘Haven’,51 the ‘Aegean Sea’,52 and the ‘Braer’53 oil spills. The Committee allowed, in principle, the recovery of pure economic loss in relation to claims for loss of income by beach facilities in the case of the ‘Haven’ spill.54 In relation to hotels, restaurants and shops, the Committee stated that each case had to be decided on its own merits, and one had to ascertain the existence of a causative link between the contamination and the loss.55 The question as to whether one should distinguish between the various business establishments within the same village was also addressed: . . . the Committee endorsed the Director’s position that all hotels, restaurants and shops in the same town or village should be treated equally in principle, independent of their location. As regards shops, it was agreed that it would not be reasonable to make a distinction dependent on the types of goods sold, except in respect of shops selling goods which were not normally bought by tourists (such as furniture and cars).56

Moreover, it was decided that no distinction should be made between the villages and towns along the coast between Genoa and the French border; the

49 50 51 52 53 54 55 56

Ibid. IOPC Fund documentation FUND/EXC. 35.3,4. Italy, April 1991. Spain, December 1992. United Kingdom, January 1993. IOPC Fund documentation: FUND/EXC. 35/10 §3.2.3. Ibid., §3.2.4. Ibid., §3.2.5.

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process of ascertainment of damage was to proceed without regard as to whether the particular town or village had been directly affected by the spill.57 Indeed, the Director had earlier speciﬁcally stated that ‘it would be inappropriate, in respect of establishments in the same town or village to distinguish between establishments located on or very close to the beach and those located a little further from the beach, say 100–500 metres away’.58 Similar issues were raised as a result of the ‘Aegean Sea’ oil spill. The following claims were considered as admissible in principle by the Executive Committee of the IOPC Fund: claims of the owners of a ﬁsh shop and the operator of a shop selling ﬁshing gear and windsurﬁng paraphernalia, subject to proof of a causative link;59 claims of loss of income by self-employed ﬁshporters and net makers;60 claims of a car repair ﬁrm which lost business as a result of the closure of an area to ensure free movement in connection with preventive measures;61 and claims by a time charterer for hire payments and claims by a shipowner for loss of hire.62 However, a claim by a ﬁsh-feed manufacturer in Denmark who lost sales as a consequence of the ‘Braer’ oil spill due to a reduced demand from a ﬁsh farm was rejected as a loss by breach of contract as distinct from contamination.63 The issue of pure economic loss has moved beyond the sphere of the IOPC Fund hierarchy and on to the courts of law in several jurisdictions. The ﬁrst case to reach the courts in a jurisdiction within the United Kingdom in relation to this matter is that of Landcatch v. IOPC Fund.64 In the wake of the ‘Braer’ oil spill, emergency orders were issued prohibiting the use, landing and supply of ﬁsh from a designated exclusion zone. The claimant’s activity was the production of smolt some ﬁve hundred kilometres away from the spill. The practice was for the claimants to rear smolt in anticipation, and frequent discussions between Landcatch and the salmon farmers would have been concluded in early 1993 for delivery around April to May 1993;65 the expected contracts never materialised as a result of the oil spill.66 The litigation took place before the Scottish courts and the dispute was governed by the domestic legislation

57

Ibid., §3.2.6. IOPC Fund documentation: FUND/EXC. 35.3, §3.2.13. 59 IOPC Fund documentation: FUND/EXC. 35.10, §3.3.15/16. 60 Ibid., §3.3.18. 61 IOPC Fund documentation: FUND/EXC. 36/10, §3.3.8–§3.3.9 (5 October 1993). 62 IOPC Fund documentation: FUND/EXC. 37/3, §4.3 (8 October 1993). 63 IOPC Fund documentation: FUND/EXC. 38/9, §3.4.18 and 3.4.19 (11 February 1994). 64 Court of Session, Inner House (Second Division), 19 May 1999, [1999] 2 Lloyd’s Rep. 316. 65 [1999] 2 Lloyd’s Rep. 316 at 320. 66 Ibid., at 320–321. 58

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implementing CLC 1969 and the Fund Convention 1971. Both the court of ﬁrst instance and the appellate court decided that no recovery should be allowed. It was decided that the reference in the legislation to compensable ‘loss’ does not cover secondary or relational claims.67 This conclusion was reached by ‘applying considerations similar, though not identical, to those which have led to the development of a rule against such claims at common law’.68 Lord McCluskey further stated that a claim by a ﬁsherman whose income was generated by ﬁshing in speciﬁc waters polluted by oil was admissible even though it was a case of pure economic loss, as it would be a case of a direct economic interest directly affected by the contamination.69 This could be contrasted to the case of the trader who supplied diesel and nets to ﬁshermen; this would be a case of a loss indirectly caused by the contamination.70 A similar conclusion to that in Landcatch was reached by the English Court of Appeal in The Sea Empress,71 and it seems that ﬁshermen have special status in this area of the law.72 In The Sea Empress case, Tilbury was a company engaged in the business of ﬁsh processing, and around half of Tilbury’s sales were in processed whelks. To this end, Tilbury had a long-term sales contract with Yosung Mulsan Company Ltd in Korea. Following the grounding of the ‘Sea Empress’ in South Wales, about 72,000 tonnes of crude oil spilled into the sea. The spillage led to the imposition of a ﬁshing ban as a result of which Tilbury lost substantial proﬁts. This time, the English courts decided against recovery; this decision means, that an English court has now applied reasoning analogous to that applied in common law, in relation to pure economic loss. One can query whether it is justiﬁable for a Scottish or an English court to apply an inherently common law concept to the interpretation of a national statute applying an international convention whose main feature is the imposition of strict liability on essentially one person.73 However, it may be noted that more recently the IOPC Fund 1992 disallowed four claims for pure economic loss – semble not by ﬁshermen – in the aftermath of the ‘Erika’ spill74 that were later accepted by French courts.75 The IOPC Fund 1992 lodged appeals from

67

Ibid., at 329. Ibid. 69 [1999] 2 Lloyd’s Rep. 316 at 332. 70 Ibid. 71 EWCA Civ. 65 (7th February 2003). 72 See G. Gauci, “The Sea Empress and the Special Status of Fishermen”, Journal of Business Law, 2003, 609. 73 See G. M. Gauci, “The Problem of Pure Economic Loss in the Law Relating to Ship-Source Oil Pollution Damage”, 2 WMU Journal of Maritime Affairs, No. 1, 2003, 79, at 86. 74 IOPC Fund documentation: 92FUND/EXC. 24/2. 75 Ibid. 68

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these decisions.76 One of these decisions related to a claim by the owners of hotels in Nantes for pure economic loss; the Tribunal de Grande Instance rejected the claim in January 2004.77 The three other claims are still pending.78 The 2004 Annual Report of the IOPC Funds also refers to a number of other judgments given by French courts of ﬁrst and second instances in relation to matters relating to pure economic loss, some of which were deemed admissible while others were not.79 Another case relating to the ‘Braer’ spill and decided by a Scottish court is that of P & O Scottish Ferries v. Braer Corporation and Another.80 This case related to a claim for damages under the Merchant Shipping (Oil Pollution) Act 1971.81 P & O Ferries ‘provided the only passenger ferry service between Shetland and the mainland and . . . they operated a freight transport service within Shetland for the conveyance of goods to the ferry terminal at Lerwick’.82 The claim was made under a number of headings including loss of passenger revenue and loss of commercial trailer trafﬁc.83 It was accepted by the claimants that the claim was for purely relational economic loss.84 It was argued for the defendants that the claim was too remote and there was no special proximity that would entitle the recovery of compensation.85 For the claimants it was argued that as the Merchant Shipping (Oil Pollution) Act 1971 implemented CLC 1969, the statute should be interpreted in ‘its natural meaning unconstrained by the technical deﬁnitions of domestic legal concepts’.86 Lord Gill, who was also the judge in the Landcatch litigation at ﬁrst instance, did not accept this view and decided that ‘if the section yields a clear and comprehensible meaning, that is the meaning to be given to it, whether or not it accurately reﬂects the Convention’.87 It may, however, be noted that recently a claim similar to that of P & O Ferries was made by Brittany Ferries in the context of the spill from the ‘Erika’.88 This was discussed at the Executive Committee of the

76

Ibid. International Oil Pollution Compensation Funds (IOPC), Annual Report 2004 (London, IOPC Funds, 2005), 82–83. 78 Ibid., at 83. 79 Ibid., at 81–86. 80 Court of Session, Outer House, 7 January 1999, Lord Gill, [1999] 2 Lloyd’s Rep. 535 (hereafter P&O v. Braer). 81 Merchant Shipping (Oil Pollution) Act 1971 (UK), 1971, c. 59, s. 1. 82 P&O v. Braer, supra note 80, at 538. 83 Ibid., at 536. 84 Ibid., at 537. 85 Ibid., at 537. 86 [1999] 2 Lloyd’s Rep. 535 at 538. 87 Ibid., at 539. 88 France, December 1999. 77

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IOPC Fund 1992 in July 2002. This claim speciﬁcally related to the admissibility of a claim for compensation by a French company which provided ferry services to various locations; it was a claim for pure economic loss and the costs of a marketing effort aimed at mitigating losses. The Executive Committee decided – it is submitted rightly – that ‘since there was a link of causation as regards various items of the claim between the alleged loss and the contamination, the claim by Brittany Ferries was admissible in principle’. Furthermore, the Committee ‘authorised the Director to assess the admissible quantum of the claim, taking into account in particular whether the reduction in passenger numbers fell within the normal ﬂuctuations’. The Director was further instructed ‘to take into consideration all factors . . . that could have contributed to the losses’.89 The same problems are likely to arise in the interpretation of similarly worded deﬁnitions of ‘pollution damage’ applicable in HNS 1996,90 the Bunker Convention,91 and the IOPC Supplementary Fund Protocol 2003.92

‘A Natural Phenomenon of an Exceptional, Inevitable and Irresistible Character’ A ship seeking a port of refuge might well be in that position as a result of ‘a natural phenomenon of an exceptional, inevitable and irresistible character’. This exception is contained in CLC 1992,93 HNS 1996,94 and the Bunker Convention.95 It is to be noted that the Fund Convention 1992 and the IOPC Supplementary Fund Protocol make no such exception, and, therefore, there can be recovery in this respect from the IOPC Fund; the same position obtains vis-à-vis the HNS Fund and the IOPC Supplementary Fund. With reference to the wording of CLC 1992, HNS 1996, and the Bunker Convention on this point, one can say that the wording is very strict, particularly as a result of the use of ‘inevitable’ and ‘irresistible’. One might argue that, as the exception is undoubtedly stricter than that of ‘act of God’, if the cause of the loss is a hurricane, the shipowner might still be liable, since some ships might well cope with a hurricane.96 There, however, appears to be some doubt as to the exact implica-

89

IOPC Fund documentation: 92FUND/EXC. 17/10, §3.2.22 (3 July 2002). Supra note 31, HNS 1996, Art. 1(6). 91 Supra note 31, Bunker Convention, Art. 1(9). 92 Supra note 41, IOPC Supplementary Fund Protocol 2003, Art. 1(6). 93 Supra note 31, CLC Convention, Art. 3. 94 Supra note 31, HNS 1996, Chapter I, Art. 7. 95 Supra note 31, Bunker Convention, Art. 3. 96 See M. Forster, “Civil Liability of Shipowners for Pollution”, Journal of Business Law, 1973, 23 at 25–26. 90

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tions of the use of ‘irresistible’ and ‘inevitable’, i.e., whether one should refer to the actual ship from which the oil is discharged, to ships in the same class, or to all ships. It is submitted that the wording of the paragraph in question – being in the nature of an exception – would justify a strict interpretation to the effect that reference should be made to that category of ships when assessing irresistibility; going beyond that to gauge irresistibility on the basis of any ship in existence might be taking the spirit of the Convention too far and might mean a quasi-impossible burden of proof on the shipowner. With developments in technology and weather forecasting, it may well be the case that no force majeure episode is inevitable. Most, if not all, occurrences of bad weather can be avoided, as enough time is normally existent between the prediction of the incidence of the force majeure and its actual occurrence. It may be noted that the tsunami occurring in Asia in December 2004 had been predicted by at least one scientist.97 However, the fact that there was one prediction without any publicity may not necessarily render it inevitable.

Contributory Negligence in the Conventions It may well be the case that a shipowner sued for pollution damage by a state under CLC 1992 might use the defence contained in Article III(3). This provides: If the owner proves that the pollution damage resulted wholly or partially either from an act or omission done with intent to cause damage by the person who suffered the damage or from the negligence of that person, the owner may be exonerated wholly or partially from his liability to such person.

HNS 1996, Article 7, and the Bunker Convention, Article 3, contain the same provision. A scenario where this defence might be utilised is that where the governmental authorities in a state negligently refuse a request for refuge from a vessel in distress. The facts might well give rise to a ﬁnding of negligence on the part of the state. The standard of care required from a state in such circumstances would possibly be assessed on the basis of the IMO Guidelines on Places of Refuge for Ships in Need of Assistance.98

97

See J. Leake, “Geologist gave repeated warnings”, Sunday Times, London, 2 January 2005, 3. 98 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2004, IMO Doc. A 23/Res.949, 5 March 2004. See, further, H. Ringbom, “Places of Refuge and Environmental Liability and

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A similar defence is also available to the IOPC Fund 1992 under the Fund Convention 1992. Article 4 (3) provides: If the Fund proves that the pollution damage resulted wholly or partially from an act or omission done with the intent to cause damage by the person who suffered the damage or from the negligence of that person, the Fund may be exonerated wholly or partially from its obligation to pay compensation. The Fund shall in any event be exonerated to the extent that the shipowner may have been exonerated under Article III, paragraph 3, of the 1992 Liability Convention. However, there shall be no such exoneration of the Fund with regard to preventive measures.99

Therefore, it may well be the case that measures taken by a state, prima facie preventative, resulting however to be negligent, may still qualify for compensation from the IOPC Fund 1992. This would be the case if the measures qualify within the deﬁnition of preventive measures as contained in Article 1(2) of the Fund Convention 1992, which adopts the deﬁnition as contained in Article I, paragraph 7 of CLC 1992. That paragraph deﬁnes preventive measures as meaning ‘any reasonable measures taken by any person after an incident has occurred to prevent or minimise pollution damage’. The threshold of reasonable measures can possibly be higher in domestic law than the threshold triggering liability in terms of negligence, in the sense that something can be negligent but still within the ambit of reasonableness required in law.

The Abandoned Vessel in the Context of the Ship-source Oil Pollution Conventions The liability for damage caused by an abandoned vessel – in a port of refuge scenario – is not directly addressed in either common law, or the conventions themselves. However, in English law we ﬁnd abandonment dealt with in the Marine Insurance Act 1906,100 particularly in its reference to notice of abandonment in the context of the contract of marine insurance. Section 60 of the Marine Insurance Act 1906 does not specify to whom the subject matter of the insurance must be abandoned. On the other hand section 61 provides for abandonment to the insurer. Section 62 provides that with a few exceptions, a condition precedent to the validity of a claim for a constructive total loss is the giving of a notice of abandonment. Section 63(1) signiﬁcantly provides that:

Compensation, with Particular Reference to the EU”, CMI Yearbook 2004 (Antwerp, Comité Maritime International, 2004), , 5 July 2005. 99 See, also supra note 31, HNS 1996, Art. 14, para. 4. 100 Marine Insurance Act 1906 [6 Edw 7, c. 41].

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Where there is a valid abandonment the insurer is entitled to take over the interests of the assured in whatever may remain of the subject-matter insured, and all proprietary rights incidental thereto.

The section indicates that, upon abandonment, the underwriter has the option to take over the interests of the assured, as well as the option not to do so. In Allgemeine v. Administrator of German Property, Scrutton C.J. stated: What is the effect of abandonment under English law . . .? When the total loss of a thing insured is not actual but constructive, that is, where the thing insured is in specie, but the cost of preserving and repairing it would be more than its value when preserved or repaired . . . the assured must give notice of abandonment. This in itself does not pass any property or rights in the thing insured to the underwriter. If the underwriter then pays the assured a total loss, it used to be thought that the payment passed the property and rights incidental to it to the underwriter, as beneﬁt of salvage . . . [B]efore the Marine Insurance Act was passed in 1906, circumstances arose which rendered it necessary to consider whether an underwriter, merely by paying, necessarily became the ‘owner’ of the thing insured. For it might be a damnosa hereditas, whose ownership only imposed liabilities which the underwriter did not want.101

The next question is whether abandonment by the assured automatically divests him of ownership. In theory it should not, at least not at a time when environmental awareness is of prime concern. However, some judicial dicta send confusing signals. Bailhache J. in Boston Corporation v. France Fenwick and Co. Ltd102 stated: On principle it must be borne in mind that in the case of a constructive total loss an owner can only abandon to his underwriters. Having done this, he divests himself of his property in the thing abandoned and ceases to be its owner . . . I have refrained from expressing any opinion whether a valid notice of abandonment, unaccepted by underwriters, while it divests the owner of his property in the wreck at the same time automatically transfers the property to the underwriters. I will only say that there is a good deal to be said against this view in favour of the wreck becoming in such circumstances a res nullius. This point does not call for decision.103

This case related to an action by the Mayor and Corporation of Boston for wreck removal expenses against the person who was the owner of a vessel prior to its being abandoned in terms of the contract of insurance. It was held that the defendant was not liable. 101 102 103

Allgemeine v. Administrator of German Property [1931] 1 KB 672 at 687. [1923] 39 TLR 441. Ibid., at 443, 444.

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A similar point had arisen in The Crystal, decided by the House of Lords.104 As with the previous case, the issue related to wreck removal expenses. It was decided that at the time the removal expenses were incurred, the owners had abandoned the vessel as derelict and had given notice of abandonment to the underwriters. It was held that the defendants were not liable for the removal expenses on the ground that they were not the owners at the material time. However, the leading work on marine insurance, Arnould’s Law of Marine Insurance and Average,105 refers to the case of Vandervell v. IRC106 where it is stated by Plowman J. that: . . . a man does not cease to own property by saying “I don’t want”. If he tries to give it away the question must always be, has he succeeded in doing so or not.

One can also derive support for this view from a statement of Greer L.J. in Ocean Steam Navigation Company Ltd v. Evans107 that ‘[i]t does not follow that, because notice of abandonment is given to an insurer, therefore the vessel, which may have some value, is abandoned to all the world so that it has no owner at all, and becomes what lawyers prefer to describe, using the Latin language, a res nullius’.108 If the correct legal position is that upon abandonment the owner of a vessel divests himself of the ownership of the subject-matter insured whether or not ownership is taken over by another individual, this may expose a lacuna in the legislation relating to pollution damage referred to above. This position can be contrasted with that under the United States federal Oil Pollution Act of 1990,109 where the deﬁnition of responsible party includes the person owning or operating the vessel immediately prior to the abandonment.110

104

1894 AC 508. M. J. Mustill, and J. C. B. Gilman, Arnould’s Law of Marine Insurance and Average, 16th edition (Stevens & Sons, London, 1981), §1290. 106 45 1966 Ch. 261. 107 1934 XL Com Cas. 108 CA. 108 Ibid., at 111. 109 Public Law 101–380 [HR 1465]; 18 August 1990. 110 See United States Code 33, §2701 (32) where ‘responsible party’ in respect of an oil spill is deﬁned as: (A) Vessels. In the case of a vessel, any person owning, operating or demise chartering the vessel . . . (F) In the case of an abandoned vessel . . ., the persons who would have been responsible parties immediately prior to the abandonment of the vessel. . . . 105

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When Does a ‘Ship’ Become a Wreck? It may be open to the appropriate defendant – faced with a claim for pollution damage under one or more of CLC 1992, the Fund Convention 1992, HNS Fund 1996, the Bunker Convention, and the IOPC Supplementary Fund Protocol 2003 – to argue that the pollutant is not emanating from a ship, but from a wreck.111 The issue of damage caused by a wreck is not speciﬁcally referred to or elaborated on in the aforementioned conventions. For instance, Article I, paragraph 1 of CLC 1992 and Article 1(2) of the Fund Convention 1992112 deﬁne ‘ship’ as meaning any sea-going vessel and seaborne craft of any type whatsoever constructed or adapted for the carriage of oil in bulk as cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship only when it is actually carrying oil in bulk as cargo and during any voyage following such carriage unless it is proved that it has no residues of such carriage of oil on board.

The point does not as yet seem to have arisen in the IOPC Fund jurisprudence. However, it may be noted that the emission of oil from wrecks has arisen on numerous occasions. For instance, the 2003 IOPC Funds Annual Report refers to the spill from the ‘Dolly’ in the Caribbean in November 1999.113 The ‘Dolly’ was carrying 200 tonnes of bitumen at the time of sinking in 20 metres depth in a bay at Martinique. The issue as to whether the ‘Dolly’ did not qualify as a ‘ship’ because it was a wreck for the purposes of the Fund Convention 1992 does not seem to have arisen. ‘Wreck’, as indicated above, is not deﬁned in the Fund Convention 1992, and one may be justiﬁed in referring to the analogy of the International Convention on Salvage 1989 which in Article 1(b) deﬁnes vessel as meaning ‘any ship or craft, or any structure capable of navigation’. Brice has argued that the comma after ‘craft’ in the said deﬁnition, indicates that ‘capable of navigation’ may only refer to structures, and therefore sunken and derelict vessels, which are not capable of navigation, could be subjects of salvage.114 On the other hand the deﬁnition of ‘ship’ in CLC 1992 and the Fund

111

A wreck is deﬁned in the British Merchant Shipping Act 1995 (1995), c. 21, section 255(1) as including ‘jetsam, ﬂotsam, lagan and derelict found in or on the shores of the sea or any tidal water’. 112 See also: HNS 1996, supra note 31, Art. 1; Bunker Convention, supra note 31, Art. 1; and IOPC Supplementary Fund Protocol 2003, supra note 41, Art. 1. 113 International Oil Pollution Compensation Funds (IOPC), Annual Report 2003 (London, IOPC Funds, 2004), 87. 114 Aleka Mandaraka-Sheppard, Modern Admiralty Law (London, Cavendish, 2001), 658–659, quoting G. Brice, Maritime Law of Salvage, 3rd edition (London, Sweet & Maxwell, 1999), fn. 1, at 211.

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Convention 1992 uses the phrase ‘seagoing vessel and any seaborne craft of any type whatsoever…’.115 It appears to be strongly arguable that an oil spill from a ship no longer sea-going or seaborne, i.e., a wreck, does not qualify for damages in terms of CLC 1992 and the Fund Convention 1992. It may furthermore, however, be argued that a vessel that is seagoing and spills oil before becoming a wreck remains such a vessel even though it is no longer seagoing before it spills further oil. It would seem that it would not be within the spirit of the aforementioned Conventions to allow partial recovery in an instance where the nature of the structure changes from that of a sea-going vessel or seaborne craft to one which is not.

The Draft Convention on Wreck Removal116 The Draft Convention on Wreck Removal imposes various obligations on the registered owner and operator of the ship. ‘Registered owner’ is deﬁned in Article 1 as meaning: the person or persons registered as the owner of the ship or in the absence of registration, the person or persons owning the ship, at the time of the maritime casualty. However, in the case of a ship owned by a State and operated by a company which in that state is registered as the operator of the ship, ‘registered owner’ shall mean such company.

Various obligations are imposed on the registered owner of the ship, particularly the removal of the wreck determined to constitute a hazard.117 Article 11 furthermore provides that the registered owner shall pay compensation in respect of wreck location, the marking of the wreck and wreck removal, subject to exceptions similar to those contained in CLC 1992118 and also subject to the

115

CLC Convention, supra note 31, Art. I, para. 1 and Fund Convention, supra note 40, Art. 1(2). 116 IMO documentation 89/5, 17 August 2004. 117 Draft Convention on Wreck Removal, IMO Doc. LEG 88/4, 16 February 2004, Art. 10, para. 2. 118 These exceptions arise if the registered owner proves that the maritime casualty that caused the wreck: (a) resulted from an act of war, hostilities, civil war, insurrection, or a natural phenomenon of an exceptional, inevitable and irresistible character; (b) was wholly caused by an act or omission done with intent to cause damage by a third party; or (c) was wholly caused by the negligence or other wrongful act of any Government or other authority responsible for the maintenance of lights or other navigational aids in the exercise of that function. Ibid., at Art. 11.

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right to limit liability, but without prejudice to rights of recourse.119 Article 12 avoids overlap with other international conventions through its provisions. It is noteworthy that ‘maritime casualty’ is deﬁned as meaning ‘a collision of ships, stranding or other incident of navigation or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or its cargo’.120 This provision will ensure that even after abandonment, as discussed earlier, the previous owner of the vessel remains liable. The Draft Convention also provides in Article 13 for compulsory insurance linked to global limitation of liability and imposed on the registered shipowner: [t]he registered owner of a ship . . . ﬂying the ﬂag of a State Party shall be required to maintain insurance, or other ﬁnancial security such as a guarantee of a bank or similar institution, to cover liability under this Convention in an amount equal to the limits of liability for the ship calculated in accordance with article 6(1)(b) of the Convention on Limitation of Liability for Maritime Claims, 1976, as amended.

The obligation of reporting a wreck without delay is imposed by the Draft Convention on the operator of the ship.121 The ‘operator of the ship’, unlike that of registered owner, in this Draft Convention, may not be so easily identiﬁable in the event of a casualty. Indeed, Article 1, paragraph 9 of the Draft Convention on Wreck Removal deﬁnes ‘operator of the ship’ as meaning ‘the owner of the ship or any other organization or person such as the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship from the shipowner and who, on assuming such responsibility has agreed to take over all duties and responsibilities imposed by the International Safety Management Code’.122 The aforementioned issues relating to wrecks can arise outside the context of a port of refuge scenario even in cases where the eventual damages sustained by a coastal state are substantial. However, as the existing international legislation for pollution damage does not speciﬁcally deal with damage by wrecks, it may well be argued that this is a matter which should form part of the on-going discussions on the Draft Convention on Wreck Removal.

119 120 121 122

Ibid. Ibid., Art. 1(3). Ibid., Art. 6. Ibid., Art. 1, para. 9.

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State Responsibility for Environmental Damage in International Law in the Place of Refuge Scenario A place of refuge scenario can possibly lead to a claim for damage against a state, particularly the ﬂag-state. Responsibility imposed on a state for environmental damage is a difﬁcult issue and there are no clear-cut answers in international law sources. The port of refuge legal liability issue has largely been left to be dealt with in national law through international obligations imposed by state adherence to what are essentially ‘private law’ international conventions. These are CLC 1969, Fund Convention 1971, CLC 1992, Fund Convention 1992, HNS 1996, the Bunker Convention, and the IOPC Supplementary Fund Protocol 2003. However, neither HNS 1996 nor the Bunker Convention have come into force. When all these instruments are implemented, they will, to a large degree, provide what can be termed substantial, though not perfect, coverage for damage caused in the ship-source pollution scenario. In a perfect world, international law would provide for ﬂag state responsibility for serious damage caused by a ship spilling pollutants, when that spill has been caused by lack of due diligence – as distinct from strict liability – on the part of a that ﬂag state. State responsibility would be perfectly compatible with normal expectations of fairness and justice. It would also be in line with the statement in the second decision in The Trail Smelter case123 that ‘under the principles of international law, . . . no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence’.124 The polluting activity in that case was a private, – as distinct from state, – activity. Similar considerations are contained in a statement from the Canadian Secretary of State for External Affairs requesting assurances from the United States Government in respect of compensation for damage relating to a Liberian tanker spilling oil in a reﬁnery in the State of Washington.125 However, state practice and case law do not support any deﬁnitive outcome as to whether there is a case of liability for environmental damage at international law.126 There is another facet to this argument because, for many purposes, a ship is an extension of the territory of the ﬂag-state, i.e. a ship can be characterised as quasi-territory in relation to that state. It has been said that a ‘ship which bears

123

Trail Smelter (USA v. Canada), award of 11 March 1941, RIAA III, 1938–1981. Ibid., at 1965. 125 See H. Xue, Transboundary Damage in International Law (Cambridge, Cambridge University Press, 2003), 78–79. 126 See P. Birnie and A. Boyle, International Law and the Environment, 2nd edition (Oxford, Oxford University Press, 2002), 185–187. 124

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a nation’s ﬂag is to be treated as a part of the territory of that State . . . A State is a kind of ﬂoating island’.127 The ﬂag state invariably allocates certain powers of administration to the ship master and also applies its national law to a number of eventualities taking place on the vessel, for example births, marriages, crimes on board, the making of wills, and death. If the ﬂag state treats the ship in its internal law as an extension of its territory, there should be no reason why, in international law, ‘territory’ and ‘quasi-territory’ should not be treated on a par, particularly where there is a substantial genuine link between the ship and the ﬂag state. This argument, however, would not be so convincing where the ship ﬂies a true ﬂag of convenience, where the link between a ship and the ﬂag it ﬂies can be characterised as tenuous.

CONCLUSION Ships in a place of refuge scenario are likely to raise issues of liability, which in a number of instances is possibly subject to limitation of liability. While some of the matters arising, as indicated above, are covered by existing international and national legislation, there are substantial areas, particularly relating to liability for damage caused by wrecks and in relation to ﬂag-state responsibility which need to be dealt with. Coastal states are more likely to grant access to a place of refuge if international and national laws provide for a complete and accessible imposition of liability.

127

Q. v. Anderson, LR 1 CCR 161, as quoted in B. D. Smith, State Responsibility and the Marine Environment (Oxford, Oxford University Press, 1988), 151. See also E. Margolis, “The Hydrogen Bomb Experiments and International Law”, 64 Yale Law Journal, 1955, 629 at 642 (text at footnote 69), where reference is made to the quote from the case of The S.S. Lotus – ‘a ship on the high seas is assimilated to the territory of the State the ﬂag of which it ﬂies’.

Chapter 12 Insurance Perspective on Places of Refuge Patrick Donner INTRODUCTION A vessel needing assistance has usually already suffered some damage or faces a danger of suffering damage. But more importantly, such a vessel may also have caused damage, sometimes by way of pollution, and there is usually an imminent danger of additional damage arising in the form of damage to property, pollution and, in the worst case, the ship becoming a wreck, which needs to be removed. The values, interests and, in particular, the liabilities involve large sums and the shipowners’ own ﬁnancial resources are usually not sufﬁcient to carry all losses. Previous chapters in this volume have explored aspects of salvage of vessels in need of assistance and compensation for pollution damage caused by such vessels. This chapter will discuss the scope of insurance cover available to compensate for these losses and liabilities and the extent of such insurance cover, i.e., is the cover sufﬁcient. This analysis of insurance aspects of vessels in need of assistance builds on a basic assumption that we are dealing with ‘normal’ vessels, i.e., vessels managed and operated in international trade by bona ﬁde commercial companies in accordance with reasonable industry practices. Such a vessel would substantially meet international safety requirements, at least to the extent that it has

321 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 321–346. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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been allowed to continue to sail when it was last inspected by port state control, would be ‘in class’, i.e., inspected and approved by a recognised classiﬁcation society, and would have a full complement of ofﬁcers and crew carrying valid certiﬁcates of competency. It would also mean that it has standard insurance cover, meaning at least hull and machinery insurance and protection and indemnity insurance. Not all vessels in international trade fulﬁl these criteria. However, the deﬁnition of ‘normal’ is intentionally wide enough to include all ships except the very worst cases of ships, which are operated in such a manner as to consciously try to minimise all costs for maintenance and operation, including the cost of insurance premiums. This assumption is also important in the sense that a vessel, which does not fulﬁl these basic criteria, may lose the beneﬁt of its insurance cover.1 If that were the case, there would be no insurance perspective to contemplate.

MAIN TYPES OF MARINE INSURANCE The term marine insurance encompasses a whole series of different types of insurance, each with its speciﬁc scope of cover. However, the two most important types are hull and machinery insurance (H&M) and protection and indemnity insurance (P&I). The former is primarily a property insurance, which aims to cover the value of the vessel itself or the cost of repairing it, i.e., it protects the shipowner’s investment. Although shipowners in the past often found the cost of insurance too high to justify and chose to spread the risk by owning shares in several ships, rather than taking the risk of owning whole ships, in modern times the investment is simply too high not to carry insurance. The H&M insurance is complemented by P&I insurance, which covers claims arising out of liabilities to third parties and which are not covered by H&M insurance. Mutual insurance associations, or P&I Clubs, have been the predominant providers of this type of insurance and cover over 90 percent of the world’s merchant ﬂeet. There are also ﬁxed premium insurers who offer P&I cover, but they cover primarily smaller vessels engaged in ﬁshing and coastal shipping. In the context of a vessel in need of assistance seeking a place of refuge, the insurance of the property itself is of relatively little interest, as it only concerns the relationship between the property insurer and the assured. The primary concern, therefore, is not the damage sustained by the vessel itself but the damage

1

This principle is clearly stated in the International Hull Clauses (01/11/03) clause 14.4 as well as Institute Time Clauses – Hulls (01/10/83) clause 4; Institute Time Clauses – Hulls (01/11/95) clause 5; and the Norwegian Marine Insurance Plan of 1996 §3–14. The same applies to P&I cover; see UK P&I Club Rules 2005 (hereafter UK Rules), Rule 5 (K) and Gard P&I Rules for Ships 2004 (hereafter Gard Rules), Rule 8.

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that such a vessel may cause to third parties in and around the place of refuge and the vessel’s liability for such damage. The vessel may cause physical damage, which potentially can be very extensive, especially damage as a result of a ﬁre or explosion occurring on or caused by the vessel inside a port of refuge or in its immediate vicinity. One often cited example is the explosion of the ‘s/s Grandcamp’ in Texas City on 16 April 1947 and the subsequent explosion of the ‘s/s High Flyer’, which left 468 people dead with another 100 people missing, 3,500 injured and one third of the houses and much of the town’s infrastructure destroyed.2 This is an extreme example that, incidentally, had nothing to do with places of refuge as the initial ﬁre arose during normal operations when the vessel was loading a cargo of ammonium nitrate, but it is a vivid illustration of the potential magnitude of damage. The resulting damage could also disrupt business in a port of refuge. Disruption could also result from the stricken vessel sinking in the port or its entrance effectively closing the port for an extended period of time. Finally, the vessel may be leaking and cause pollution and damage to the environment in the coastal waters or inside a port. This does not only concern oil tankers as all vessels carry fuel oil as bunkers and numerous substances other than oil, which would cause serious pollution if they were spilled. In fact, practically any cargo lost into the sea would constitute a problem – and a liability – if the quantity is in the hundreds or thousands of tons. There are several other types of insurance in the maritime ﬁeld that provide cover for speciﬁc risks such as war risks, freight earnings, strikes and cargo insurance (the cargo owner’s property insurance). Each type of insurance has its signiﬁcance and can become an issue in connection with a vessel needing assistance. However, they are not relevant in the context of the vessel itself needing assistance and the liabilities that may arise out of such an incident. Therefore, the focus here will be limited to the two main types, H&M and P&I insurance, respectively. Generally speaking, it could be said that if the shipowner is liable, his liability is covered by either of these two insurances. However, it should also be noted that insurance is about indemnity, i.e., the shipowner has protected his economic position so that, if he has to pay compensation for a liability he has incurred, his insurer will indemnify him. Normally an injured party cannot claim directly against the insurer. This ‘payto-be-paid’ principle will be discussed later.

2

See, for example, “The Texas City Disaster April 16, 1947”, <www.local1259iaff. org/disaster.html>, 29 April 2005.

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Salvage and Towage Basically H&M insurance covers property damage, i.e., the insurer indemniﬁes the owner if the ship is lost or damaged. If the vessel contracts a salvor or avails itself of salvage services, the salvage charges incurred are covered by the vessel’s H&M insurance3 as they are incurred in order to prevent or minimise a loss, which would be covered under the insurance policy. As noted above, the normal H&M insurance cover for loss of or damage to the vessel is not the primary concern here but the cover relating to salvage is of some interest. When a vessel is in distress and needs assistance, such assistance, almost by deﬁnition, constitutes salvage. There are, of course, very common situations when vessels need the assistance of tugs in entering and manoeuvring in ports, but these are within the routine operations based on an express or implied contract or on a duty imposed by the port authority. Such situations clearly fall outside the scope of this study, and they do not raise insurance implications. It is abnormal situations, when the vessel has encountered some sort of problem, i.e., is in distress and it seeks a place of refuge, that merits a closer look. Even in these situations, a local tug operating in and around the port where a vessel seeks refuge, would in most cases only provide the normal towage services associated with entering and manoeuvring within the port. Such towage would still be considered normal contracted towage services and might not constitute salvage at all.4 Undertaking salvage always entails risk, the commercial risk being that the salvage contract is usually based on the principle of ‘no cure – no pay’. However, if the salvage effort is successful at least in part, the owner’s costs, including the salvage reward, are covered by his H&M insurance. In addition, the salvage reward is normally secured by a maritime lien over the vessel so a salvor can be relatively certain that he can collect his remuneration. The issues arising in salvage only concern the relationship between the vessel in need of assistance and the salvor and the fact that the vessel may have requested a place of refuge does not complicate matters. But if there is a threat of pollution or other damage to the environment, things may become a little more complicated as it is possible that the salvors would be entitled to Special Compensation as deﬁned by Article 14 of the International Convention on Salvage, 1989 or

3 See Institute Time Clauses – Hulls (01/10/83) clause 11.1; Institute Time Clauses – Hulls (01/11/95) clause 10.1; Institute Voyage Clauses – Hulls (01/10/83) clause 9; International Hull Clauses (01/11/03) clause 8.1 and the Norwegian Marine Insurance Plan of 1996, §4–7. 4 See R. Davidson and A. Snelson, The Law of Towage (London, Lloyd’s of London Press Ltd., 1990), 59–73 regarding the distinction between salvage and towage.

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invoke the Special Compensation P&I Clause (SCOPIC) under the salvage agreement.5 Such Special Compensation falls within the scope of P&I cover and is speciﬁcally excluded under H&M insurance.6 However, this is also an ‘internal’ matter between the assured and his various insurers relating to which insurance provides the cover rather than whether there is cover.

Collision Liabilities The other potential area of interest under H&M insurance is collision liability. By tradition, in the United Kingdom the H&M insurance covers three fourths (3/4) of the liability that the vessel incurs as a result of a collision for which it is wholly or partly to blame,7 while the remaining one fourth (1/4) is covered by P&I.8 In other markets the H&M insurance terms cover the whole (4/4) collision liability. In the current context, the reason why the vessel is in need of assistance, i.e., whether it has suffered a technical breakdown, heavy-weather damage or been involved in a collision, lacks interest as such. If there has been a collision and the subject vessel is to blame for the collision, this liability is again, only a matter between those two parties and whether the vessel(s) need a place of refuge or not is not relevant. However, the H&M insurance covers only liability arising out of tort but not liability based on statutory or contractual obligations.9 This is a signiﬁcant limitation of the scope of cover if the collision occurs between the subject vessel and a tug, which has been contracted to assist the vessel. In such circumstances, the H&M insurance would not cover the assisted vessel’s liability towards the tug.10 Instead, the P&I insurance

5

International Convention on Salvage, London, 28 April 1989, U.K.T.S. 1996 No. 93. Regarding Special Compensation and SCOPIC, see Chapter 11. 6 A. Mandaraka-Sheppard, “Hull Time and Voyage Clauses: Marine Perils in Perspective”, in: D. R. Thomas, ed., The Modern Law of Marine Insurance (London, LLP Limited, 1996), 92–93. See also UK Rules, supra note 1, Rule 2 section 21; Gard Rules supra note 1, Rule 42; and Institute Time Clauses – Hulls (01/11/95) clause 10.5 and International Hull Clauses (01/11/03) clause 8.5. 7 See clause 8 of the Institute Time Clauses – Hulls (both 1983 and 1995) (hereafter Time Clauses 8); clause 6 of the Institute Voyage Clauses – Hulls (hereafter Voyage Clauses 6); and clause 6 of the International Hull Clauses (01/11/03) (hereafter Hull Clauses 6). 8 UK Rules, supra note 1, Rule 2 section 10. Gard Rules supra note 1, Rule 36 contains a similar provision. 9 N. G. Hudson and J. C. Allen, Marine Claims Handbook, 5th edition (London, LLP Limited, 1996), 27. 10 Furness Withy & Co. Ltd. v. Duder [1936] Lloyd’s Rep. 52. See N. G. Hudson and J. C. Allen, The Institute Clauses, 3rd edition (London, LLP Reference Publishing, 1999), 120–121.

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would cover the vessel’s liability,11 but only liabilities arising under ‘customary’ towage and only if the P&I Club has approved the towage operation and the terms in advance. Contracts for towage often include terms, which shift most if not all liability onto the tow, even if, in fact, the tug would be at fault. Normally a P&I Club would not agree to cover such liabilities but would require the owner to take out extra insurance cover for this. However, P&I Clubs do cover liabilities arising in connection with towage of a vessel in distress.12 In addition to the limitation of the cover under UK terms to 3/4ths of the collision liability, there is also a limitation of the extent of the cover in monetary terms. H&M insurance covers the faulting vessel’s collision liability only up to 3/4ths, or 4/4ths as the case may be, of the subject vessel’s insured value. In case a vessel with a low value causes a collision and the other vessel sustains considerable damage or becomes a total loss, this limitation may very well become an issue. In the overall compensation picture this is not a problem since P&I insurance covers collision liabilities that ‘exceeds the sum recoverable under the Hull Policies of the entered ship solely by reason of the fact that the sum of the liabilities arising out of the collision exceeds the valuation of the ship in those policies’.13 The H&M insurance terms also limit the scope of the collision liability in that they only cover indemniﬁcation of the loss of or damage to the other vessel and any property on board that vessel, primarily meaning its cargo, delay to or loss of use of that other vessel or its cargo, as well as salvage of it and its cargo. On the other hand, loss of life or personal injury, the vessel’s own cargo, wreck removal as well as pollution, contamination and damage to the environment are speciﬁcally excluded,14 but are normally covered under the P&I insurance.15 When looking at collision liability, it should be noted that in an insurance perspective a collision means that a vessel comes into contact with another vessel. If a moving vessel hits a wharf, quay, pier, breakwater, bridge or other object, the incident would not be deﬁned as a collision but would be deﬁned as an ‘allision’. In marine insurance terms this is referred to as damage to ﬁxed and ﬂoating objects (FFO). When a vessel is in need of assistance and seeks a place or port of refuge, it is quite possible that its ability to manoeuvre is impaired. Therefore, the risk of striking ﬁxed structures in a port is probably of

11

UK Rules, supra note 1, Rule 2 section 13 and Gard Rules, supra note 1, Rule 43. E. Gold, Gard Handbook on P&I Insurance, 5th edition (Arendal, Assuranceforeningen Gard-Gjensidig, 2002), 225. 13 UK Rules, supra note 1, Rule 2 section 10 and Gard Rules, supra note 1, Rule 36. 14 Time Clauses 8, supra note 7; Voyage Clauses 6, supra note 7; and Hull Clauses 6, supra note 7. 15 S. J. Hazelwood, P & I: Clubs Law and Practice, 3rd edition (London LLP Professional Publishing, 2000), pp. 154–155. 12

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greater relevance than the risk of an actual collision with another vessel, and the risk is not limited to damage to the port infrastructure but also damage to the superstructure, such as cranes and other equipment, as well as disruption of operations of the port and its terminals and even industry relying on goods shipped through the port. Standard hull conditions in the United Kingdom, the United States and Japan only cover the vessel’s liability arising from a collision with another vessel and do not cover damage to ﬁxed and ﬂoating objects. However, common hull conditions in other markets, such as Scandinavia, France and Germany, do include cover for damage to ﬁxed and ﬂoating objects.16 As is the case with the collision liability, liability for damage to ﬁxed and ﬂoating objects, as well as damage to other property, including infringement of rights, is covered by P&I if it is not already covered by the hull policy.17

Wreck Removal Liabilities When a vessel is in need of assistance it faces the risk of becoming a wreck and, even if the vessel has enlisted the help of professional salvors, the salvage efforts may not be successful in saving the vessel. The cost of wreck removal is often very high so it represents a signiﬁcant liability. In this connection it should be noted that what applies to removal of the wreck applies equally to removal of its cargo. From an insurance perspective, the question of when a vessel has become a wreck can be quite complicated, but this is not the place to analyse such issues as actual or constructive total loss, the owners giving notice of abandonment to its H&M underwriters and divesting themselves of property rights to the vessel, whether or not the underwriters accept such abandonment, and whether owners by abandonment can also divest themselves of the liabilities that follow from ownership.18 Under English law it has been possible, at least in some circumstances, to escape liability for the cost of removal.19 In any

16 Gold, supra note 12, 182. See also the American Institute Hull Clauses, lines 158–184 and the Norwegian Marine Insurance Plan of 1996, §13–1. 17 UK Rules, supra note 1, Rule 2 section 11 and Gard Rules, supra note 1, Rules 37 and 39. 18 See H. Bennett, The Law of Marine Insurance (Oxford, Oxford University Press, 1996), 347–357; G. Gauci, “Constructive Total Losses in the Law of Marine Insurance”, in: D. R. Thomas, ed., The Modern Law of Marine Insurance (London, LLP Limited, 1996), 206–209; and E. Van Hooydonk, “Some Remarks on Financial Securities Imposed by Public Authorities on Casualty Ships as a Condition for Entry into Ports”, in: M. Huybrechts, E. Van Hooydonk, and C. Dieryck, eds., Marine Insurance at the turn of the Millennium Vol. 2 (Antwerp/Groningen/Oxford, Intersentia, 2000), 121–123. 19 Huybrechts, et al., ibid., and the their account of Arrow Shipping Co. Ltd. v. Tyne

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case, it is safe to assume that even when the hull underwriters would be willing to pay out compensation for a constructive total loss, they would be very hesitant to take over unknown liabilities through ownership of a sunken ship, which would have to be raised, especially if the ship/wreck is polluting or there is a clear threat of causing pollution.20 Under the Norwegian Marine Insurance Plan of 1996 the hull underwriter appears to be safe even if they have taken over title to a ship after a constructive total loss since, under § 5–20, the assured remains liable towards the insurer if a wreck removal obligation is subsequently imposed. If the Norwegian Marine Insurance Plan of 1996 were used as the basis for the P&I Club entry, the owner in turn would have a right to be indemniﬁed by his P&I insurance. The Draft Convention on Wreck Removal currently being developed, contains a clear deﬁnition to the effect that it is the ‘registered owner’ who will have the obligation to remove or pay compensation for the removal of a wreck, which constitutes a hazard, and that this means the entity that was the owner ‘at the time of the maritime casualty’.21 States have a general responsibility for safety of navigation in their coastal waters, including marking, raising or destroying wrecks, which may be a hindrance or threat to safe navigation. It is equally clear that any vessel, which has sought a place of refuge and sunk in an approach channel, a port entrance or inside a port, would constitute a hindrance and, therefore, would have to be removed or destroyed. In view of the risk of pollution from remaining bunkers onboard, destruction of a wreck does not seem a likely alternative, even if the wreck were not lying in a navigation channel and would not constitute an actual obstruction to navigation – the risk of immediate or future pollution would be sufﬁcient motive for the authorities to demand the removal of the wreck. In most cases, coastal state authorities have statutory power to require the owner to raise or remove the wreck and/or its cargo or to have them removed at the shipowner’s expense.22 From the shipowner’s point of view, it is possible that his insurances overlap depending on whether the damaged vessel is still an object of salvage efforts or has been designated as a wreck.23 However, wreck removal is not a ‘named peril’ and, therefore, is not covered. It is speciﬁcally excluded from the colli-

Improvement Commissioners (The Crystal) [1894] A.C. 508. In The Crystal the House of Lords found that the wreck removal obligation was imposed on the owners at the time of removal of the wreck rather than the owner at the time of becoming a wreck. 20 Gold, supra note 12, 86–87. 21 Draft Convention on Wreck Removal, IMO Doc. LEG 90/5, 2 February 2005 (hereafter Draft Convention). 22 Gold, supra note 12, 197–198. 23 See R. Force, “Overlapping Insurance Coverages”, in: M. Huybrechts, E. Van Hooydonk, and C. Dieryck, eds., Marine Insurance at the turn of the Millennium Vol. 1 (Antwerp/Groningen/Oxford, Intersentia, 1999), 225.

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sion liability under English H&M insurance conditions,24 and as stated above, hull underwriters would rarely take on the risk of incurring such a liability by virtue of becoming the owners of a ship that has already been declared a constructive total loss. On the other hand, P&I insurance clearly does provide cover for wreck removal obligations, provided that the raising or removal of the wreck is ‘compulsory by law or the costs thereof are legally recoverable from the Owner’,25 which, as stated above, would normally be the case. There are further provisos that the realised value of anything saved shall be deducted from the recovery from the P&I Club or credited to it and that the owners must not have transferred their interest in the wreck otherwise than abandonment. The Draft Convention on Wreck Removal, when it has been adopted and entered into force, will improve the situation further by making it compulsory for a vessel to have insurance covering the wreck removal liability and will also allow claimants to take action directly against the insurer.26 The conclusion, therefore, is that although the obligation to raise or remove a wreck may be onerous, the shipowner does have insurance cover for this liability.

Cargo and Passenger Liabilities The carrying vessel’s liability for loss of or damage to cargo onboard is deﬁned by the contract of carriage and, if the carriage is under a bill of lading, by international conventions, namely the Hague,27 Hague-Visby28 and Hamburg29 Rules or their respective national enactments. Traditionally, the carrier enjoys relatively wide exemptions from liability, especially under the Hague and HagueVisby Rules, so the cargo owner may ﬁnd that the carrier is not liable at all. However, if the carrier is liable, the carrier is protected by his P&I insurance.30 For the owner of the cargo, his main protection lies in taking out separate cargo insurance to cover his property value. He can then seek indemniﬁcation directly

24

Time Clauses 8, supra note 7; Voyage Clauses 6, supra note 7; and Hull Clauses 6, supra note 7. 25 UK Rules, supra note 1, Rule 2 section 15. Gard Rules, supra note 1, Rule 40 contains effectively the same provisions. 26 Draft Convention, supra note 21, Article 13. 27 International Convention for the Uniﬁcation of Certain Rules of Law Relating to Bills of Lading, Brussels, 25 August 1924, 120 L.N.T.S. 155 (hereafter Hague Rules). 28 Protocol of 1968 to amend the International Convention for the Uniﬁcation of Certain Rules of Law Relating to Bills of Lading, signed at Brussels, 25 August 1924, Brussels, 23 February 1968, U.K.T.S. 1977 No. 83 (hereafter Hague-Visby Rules). 29 United Nations Convention on the Carriage of Goods by Sea, Hamburg, 31 March 1978, 1695 U.N.T.S. 3 (hereafter Hamburg Rules). 30 UK Rules, supra note 1, Rule 2 section 17 and Gard Rules, supra note 1, Rule 34.

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from the cargo insurer leaving it up to the cargo insurer to claim against the shipowner/carrier. Claims for actual loss or damage to the cargo do not present particular problems to the port of refuge, but when a vessel seeks a port of refuge there may arise a need to unload, store and reload or tranship cargo, operations which in themselves can cause signiﬁcant problems in the port. In such a situation we may or may not be dealing with a case of general average. General average is dealt with in detail in Chapter 13 in this volume, but it can be noted that, like salvage, general average falls under the scope of H&M insurance, which covers the vessel’s portion of general average,31 but P&I insurance may also be involved. Firstly, the P&I Club will indemnify the owner for that part of the vessel’s portion of general average, which cannot be recovered from the H&M insurer because the vessel’s portion exceeds the insured value under the H&M policy,32 and secondly, P&I covers such portion of the cargo’s contribution in general average which is not legally recoverable because the vessel breached the contract of carriage.33 The liability of a vessel towards its passengers is based on the terms of the contract of carriage but also on mandatory provisions in the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974 (Athens Convention).34 In a port of refuge situation there may be instances of loss of life, illness and personal injury, loss of or damage to luggage, as well as costs for catering to passengers ashore and for alternative travel arrangements to their destination if the vessel cannot continue its scheduled journey. In addition, the owner might be liable for the delay caused to passengers and their luggage. The owner’s liability to pay damages and compensation are generally covered under his P&I insurance, but compensation payable to passengers for forwarding and maintenance ashore are only covered when they arise ‘as a consequence of a casualty’, which may or may not be the case.35 If the vessel needing assistance is a cruise ship with maybe 2,000–3,000 passengers onboard, taking care of the passengers that have to disembark could entail a massive undertaking. Despite the potential inconvenience for the port of refuge, it is difﬁcult to imagine that refuge would not be granted to such a ship in need of

31 See Institute Time Clauses – Hulls (01/10/83) clause 11.1; Institute Time Clauses – Hulls (01/11/95) clause 10.1; Institute Voyage Clauses – Hulls (01/10/83) clause 9; International Hull Clauses (01/11/03) clause 8.1; and the Norwegian Marine Insurance Plan of 1996, § 4–8. 32 See UK Rules, supra note 1, Rule 2 section 10 and Gard Rules, supra note 1, Rule 36. 33 UK Rules, supra note 1, Rule 2 sections 19 and 20 and Gard Rules, supra note 1, Rule 41. 34 Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, Athens, 13 December 1974, 14 I.LM. 945. 35 UK Rules, supra note 1, Rule 2 section 1 C and Gard Rules, supra note 1, Rule 28.

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assistance. However, if the need for assistance is due to an outbreak of an infectious illness on board,36 it is quite conceivable that actual entry into a port of refuge could be refused, and the vessel be placed in quarantine, causing the owners further losses and expenses. P&I insurance does provide cover for the additional quarantine and disinfection expenses, as well as additional costs for fuel, insurance, port charges, wages, stores and provisions (over and above the costs that it would have incurred in the normal course of operations). However, the additional liability for delay of passengers who have not themselves become ill does not appear to be covered,37 but that would hardly cause concern for the port of refuge. In this connection it could also be noted that, although strictly speaking not passengers, the P&I insurance also covers costs, expenses and liabilities in connection with having on board refugees or persons saved at sea.38

Pollution Liabilities The aspect of a vessel seeking a place of refuge that probably worries the authorities of the coastal state and the intended place of refuge the most is the risk of pollution. If a vessel needs a place of refuge due to a technical failure of the vessel’s engines, steering gear or the like, and such reasons surely represent a majority of cases, the risk of pollution is probably not very great. However, if the vessel has suffered structural damage, the risk is obviously more tangible. This is especially true if the vessel is carrying oil (or other hazardous cargo), as was the case with the ‘Castor’, ‘Erika’ and ‘Prestige’, all of which were refused a place of refuge. Generally it can be said that international conventions such as the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC Convention),39 the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (FUND Convention),40 the Protocol of 2003 to the International Convention on the

36 During the last several years there have been a number of instances when cruise vessels have had to cut short cruises due to outbreaks of Norwalk virus on board. 37 UK Rules, supra note 1, Rule 2 section 16 and Gard Rules, supra note 1, Rule 48. 38 UK Rules, supra note 1, Rule 2 sections 7 and 8 and Gard Rules, supra note 1, Rules 31 and 32. 39 International Convention on Civil Liability for Oil Pollution Damage, London, 29 November 1969, 973 U.N.T.S. 3 as amended by the protocols of 1976 and 1992 (hereafter CLC Convention). 40 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, London, 18 December 1971, 1110 U.N.T.S. 57 as amended by the protocols of 1976, 1984, 1992 and 2003, now known as the

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Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (Supplementary FUND Convention),41 the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (HNS Convention),42 and the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunker Convention)43 regulate liability for pollution damage. There are still gaps in the liability regimes since the international conventions only apply where they have been ratiﬁed and given effect in ratifying states. This is particularly true in the cases of the HNS Convention and Bunker Convention, which have not entered into force yet. However, it can be reasonably expected that they will come into force, within a not too distant future, if and when Members States of the European Union ratify them. Currently, the main apprehensions seem to focus on oil pollution risks, in particular tankers, and in this respect pollution liability is quite well regulated since the CLC and FUND Conventions are in force with relatively good geographical coverage.44 The scope of the various conventions in terms of coverage for damage caused by ship-sourced pollution has been covered in Chapter 11 in this volume and will, therefore, not be explored in depth here. One important aspect of the pollution liability conventions though is that they all impose strict, albeit limited, liability on the registered owner of the vessel. This is intended to enable claimants to claim and receive compensation quickly, without being forced to go through lengthy litigation ﬁrst to establish the shipowner’s liability. Furthermore, and particularly relevant from the perspective of insurance, is the fact that the conventions require the vessel to have compulsory insurance or

International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (hereafter the Fund Convention). The 1971 Fund Convention does not apply to incidents having taken place after 24 May 2002. 41 Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992, London, 16 May 2003. 42 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 2 May 1996, 35 I.L.M. 1406 (hereafter HNS Convention). 43 International Convention on Civil Liability for Bunker Oil Pollution Damage, London, 27 March 2001, IMO Doc. LEG/CONF.12/19, 27 March 2001 (hereafter Bunker Convention). 44 The CLC Convention, supra note 39, currently has 109 contracting states with an additional 24 countries applying the 1969 CLC Convention only. The Fund Convention, supra note 40, currently has 94 contracting states. IMO, “Status of Conventions by Country”, <www.imo.org/includes/blastDataonly.asp/data_id%3D11666/status.xls>, 29 April 2005.

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other ﬁnancial security to cover the liability it may incur, up to the respective limits of liability deﬁned in the various conventions, and they provide for direct action against the insurer.45 Although ‘other ﬁnancial security’ is an alternative to insurance, in the vast majority of cases the shipowner would wish to include it in his P&I insurance cover, and the P&I Clubs do include it in the scope of their cover.46 The P&I Clubs limit their liability towards the assured for oil pollution claims. Currently the limit is set at US$1 billion for each event or accident,47 an amount that, however, exceeds the limits of the shipowner’s liability in the respective conventions.

Abandoned Vessels A particular area of concern for ports is the problems they face when a vessel is abandoned by its owner. Notice of abandonment was mentioned earlier as a term with a speciﬁc legal meaning in connection with a vessel becoming a wreck as a result of a constructive total loss. Unfortunately, there are situations when an owner actually and literally abandons his vessel in a way where one could say that the owner abandons his vessel, its crew and his creditors. This may, of course, happen when the owner has also given notice of abandonment to his hull underwriters, but it happens in other situations as well, usually when the owner is in ﬁnancial difﬁculties and debts incurred in the operation of the vessel, such as port dues, bunkers, supplies and crew wages exceed the value of the vessel. If the vessel has had to seek a port of refuge, the risk of the vessel being abandoned increases due to the anticipated cost of necessary repairs. This is particularly the case when the repairs are occasioned by a breakdown due to ordinary wear and tear rather than particular average, i.e., damage as a result of a fortuitous event, because the H&M insurance does not cover repair of damage caused by deterioration from wear and tear.48 An abandoned vessel is a problem for the port in which it lies. The members of the crew often have not been paid their salaries for some time and they continue to incur cost in the form of wages, sustenance and repatriation. Although the port is not in any way liable for such previously incurred debts, the port may feel obliged to cover some of the continuing costs for humanitarian

45 CLC Convention, supra note 39, Article VII; HNS Convention, supra note 42, Article 12 ; Bunker Convention, supra note 43, Article 7. 46 See UK Rules, supra note 1, Rule 2 section 12 and Gard Rules, supra note 1, Rule 38. 47 UK Rules, supra note 1, Rule 5 B and Gard Rules, supra note 1, Rule 53 and Appendix III. 48 Hudson and Allen, supra note 9, 2.

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reasons, but also in order to secure necessary services for the safety of the ship. This also includes costs for necessary bunkers, water and other supplies to preserve the vessel. At the same time, the vessel causes disruption to port operations by occupying berth space without the port being able to collect payment for port charges. There is generally no insurance cover for any of these costs as they are costs that arise in the ordinary course of operation, although possibly in extraordinary circumstances. One might say that the difference lies in the fact that the other types of liability arise when the vessel has caused loss or damage fortuitously, whereas abandonment of a vessel is intentional on the part of its owner, and no insurance covers loss caused intentionally. If, however, the vessel has suffered an accident, which renders it an actual or constructive total loss, then the owner’s liability to repatriate and compensate crew members for the loss of their employment would be covered by the P&I insurance,49 but that would not include previously incurred wages. And even if this were the case, it must be remembered that the insurance is primarily designed to indemnify the assured shipowner rather than to protect third parties, i.e., the shipowner can claim against the insurer for reimbursement of actual expenses, but in a situation of actual abandonment of the vessel the point is that the owner would not have paid anything. In such a situation, the port can only try to enforce its claims by arresting the vessel and then recover from the residual value of the vessel, which could be very low, particularly in poor market conditions. The port’s claim would probably have priority by virtue of a maritime lien, but so would the crew claims, and possibly some of the other claims, so at the end of the day it is uncertain how much, if anything, the port would be able to recover.

LIMITATION OF LIABILITY The previous sections have shown that when a vessel has caused loss or damage, the owner’s liability is generally covered by his insurance, primarily his P&I Club but in certain cases his H&M underwriter. The general principle of law is that when someone has suffered a loss or damage through the negligence of another, he is entitled to be put in the same position as he would have been without that wrongdoing, i.e., the negligent party has to pay full compensation to those who suffer from his negligence. In maritime law, however, this principle does not always apply, and there is a long history, codiﬁed as early as the 17th century, of allowing shipowners to limit their liability for loss of or damage to cargo, but also more generally for many kinds of third party liabilities.50

49 UK Rules, supra note 1, Rule 2 section 6 and Gard Rules, supra note 1, Rule 27.1.b. 50 Gold, supra note 12, 462–464. See also ESCAP, Guidelines for Maritime

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This exception from the general rule of liability is based on public policy considerations to deﬁne the shipowners’ and their underwriters’ liabilities at levels which they can meet without risking bankruptcy. This principle was clearly expressed by Dr. Lushington in The Amalia case: ‘The principle of limited liability is, that full indemnity, the natural right of justice, shall be abridged for political reasons’.51 Later Lord Denning, in The Bramley Moore case, said, ‘. . . limitation of liability is not a matter of justice. It is a rule of public policy which has its origin in history and its justiﬁcation in convenience’.52 The public policy points to a close connection between limitation of liability and marine insurance in that the aim and justiﬁcation for setting the limits of liability has been to ensure the ‘commercial insurability at a reasonable cost’53 of the shipowner’s liability exposure. A comprehensive account of limitation of liability is not possible in this connection but we can basically distinguish between two types of limitation. First, we have the general limitation of liability based on the vessel’s tonnage, also called global limitation. Second, are the speciﬁc limitation regimes applying to individual claims of a particular type, such as the previously mentioned Hague, Hague-Visby and Hamburg Rules applying to cargo liability in carriage of goods by sea, the Athens Convention regulating passenger liability and the CLC, HNS and Bunker Conventions regarding pollution liability. The general tonnage or global limitation sets, as the names imply, a limit in relation to the tonnage of the vessel and the limit applies ‘globally’ to all claims, which arise out of an incident, except to claims which are speciﬁcally excluded from the scope of limitation. There are three international conventions in force that regulate the tonnage limitation, from 1924,54 195755 and

Legislation Vol. 1, 3rd edition (United Nations, U.N. Publ. No. ST/ESCAP/1076, 1991), 149–150. For a comprehensive account of the early development of global limitation, see P. Wetterstein, Globalbegränsning av Sjörättsligt Skadeståndsansvar (Åbo, Åbo Akademi, 1980), 18–32, with an English summary “Global Limitation of Maritime Liability”, 289–302). 51 The Amalia (1863) 1 Moore N.S. 471 (P.C.) Revised Reports 138, at 591, as cited in Wetterstein, ibid., note 50, 26. 52 The Bramley Moore [1963] 2 Lloyd’s Rep. 429. 53 Hazelwood, supra note 15, 283. See also E. Selvig, “An Introduction to the 1976 Convention”, in: University of Southampton, Institute of Maritime Law, ed., in The Limitation of Shipowners’ Liability. The New Law (London, Sweet & Maxwell, 1986), 9. 54 International Convention for the Uniﬁcation of Certain Rules Relating to Limitation of the Liability of Owners of Sea-going Vessels, Brussels, 25 August 1924 (hereafter 1924 Limitation Convention). The limit of liability is deﬁned as the value of the vessel, which shall not exceed eight pounds sterling per ton. 55 International Convention Relating to the Limitation of the Liability of Owners of Sea-going Ships, Brussels, 10 October 1957, 1968 U.K.T.S. 52 (hereafter 1957 Limitation Convention).

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1976,56 respectively. Between them the contracting states cover substantial parts of the world,57 but in geographical terms the coverage is not ‘global’. The United States, for example, has not ratiﬁed any of the international conventions, but instead applies national legislation, namely the Limitation of Shipowners’ Liability Act of 1851, which is substantially different from the international conventions, while the Canadian Marine Liability Act of 2001 is more aligned with the international regime.58 The essence of the global limitation is that the liabilities incurred by a vessel on any one occasion from a speciﬁc accident or incident are capped to one total amount, and if the total claims exceed the limit, the various claimants will only receive partial compensation in proportion to the size of their established claim. The existence of several competing liability regimes, with different limits of liability and different criteria for ‘breaking’ the owner’s right to limit his liability does, unfortunately, give room for forum shopping, which adds to the uncertainty for the claimants. From an insurance perspective, however, the shipowner’s right to limit his liability and the different limitation regimes do not present any particular problems, since ultimately, he will be indemniﬁed by his insurers for the liabilities he has incurred, such as they are. What may be seen as a problem is the level at which the liability cap has been set and the fact that the losses and damage a vessel can cause can be very substantial, even enormous. As noted above, the global limitation applies to almost all claims arising from an incident, except for a few speciﬁcally excluded types of claims. The excluded claims are, ﬁrstly, claims for salvage and contribution in general average,59 so they do not present a problem. Secondly, the Convention on Limitation

56

Convention on Limitation of Liability for Maritime Claims, London, 19 November 1976, 16 I.L.M. 606 (hereafter LLMC 1976), subsequently amended by the Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims, 1976, London, 2 May 1996, IMO Doc. LEG/CONF.10.8 of 9 May 1996 (hereafter LLMC Protocol 1996). 57 The 1924 Limitation Convention currently has only eight contracting states. Due to this small number and the differences in scope and methodology of limitation further analysis of the 1924 Limitation Convention will not be undertaken. The 1957 Limitation Convention has some 40 contracting states, many of which are also state parties to the LLMC 1976. CMI Yearbook 2004 (Antwerp, Comité Maritime International, 2004), at 462 and 489–490. The LLMC 1976 and the LLMC Protocol 1996, supra note 56, currently have 55 contracting states between them. IMO, “Status of Conventions by Country”, <www.imo.org/includes/blastDataonly.asp/data_id%3D11666/status.xls>, 29 April 2005. 58 Gold, supra note 12, 497–504. 59 LLMC 1976, supra note 56, Article 3(a) and 1957 Limitation Convention, supra note 55, Article 1(4)(a). As a clariﬁcation the LLMC Protocol 1996 includes the special compensation under Article 14 of the International Convention on Salvage, 1989, supra note 5, in this exception.

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of Liability for Maritime Claims, 1976 (LLMC 1976) excludes claims for oil pollution, as deﬁned in the CLC Convention,60 so the generally lower limits of liability in LLMC 1976 do not apply to claims for oil pollution from tankers and, more importantly, such claims will not have to compete with other types of claims for the global limitation amount. The owner’s liability under the CLC Convention is still limited, but there will be a separate amount of money for these claims, supplemented by a further amount from the International Oil Pollution Compensation Fund. Oil pollution claims under the CLC Convention are excluded from the scope of the 1957 Limitation Convention as well by virtue of Article XII of the CLC Convention, according to which the CLC Convention supersedes any existing international convention that is in conﬂict with it.61 The third speciﬁc exclusion relates to claims by members of the crew and servants of the owner, which is an important exception, but not deemed particularly signiﬁcant in the current context.62 In addition to the speciﬁcally excluded claims, the global limitation regime allows for two further exceptions. Firstly, contracting states may make a reservation to the effect that the global limitation shall not apply to claims relating to ‘raising, removal, destruction or rendering harmless of a ship which is sunk, wrecked, stranded or abandoned’ and the same applies to the cargo of the ship.63 A majority of the current state parties to the 1957 Limitation Convention have, in fact, made this reservation, but less than one ﬁfth of the ratifying states of the LLMC 1976 have done so.64 Since the costs for wreck removal can be very substantial, and sometimes the wreck removal cost alone will exceed the global limit, it is perhaps surprising that more states have not taken this opportunity to maximise the shipowner’s liability. If the ship owning company actually fulﬁls the removal obligation itself, the cost of the services contracted by them would not be subject to limitation in which case it would not seem to matter. If, on the other hand, the owner does not oblige and the removal is undertaken under the direction of the competent authority, the costs would have to be recovered from the liable owner and in that situation the global limitation would be applicable. The other possible additional exclusion from the scope of the global limitation concerns liability for pollution from hazardous and noxious substances under the HNS Convention and by the same logic, which excludes CLC claims

60

LLMC 1976, supra note 56, Article 3(b). See IMO Doc. LEG/CONF. 10/6(a)/24, 2 April 1996. 62 LLMC 1976, supra note 56, Article 3(e) and 1957 Limitation Convention, supra note 55, Article 1(4)(b). LLMC 1976 also excludes claims for nuclear damage. 63 LLMC 1976, supra note 56, Article 18.1. compared with Article 2.1.(e) and (f). In the 1957 Limitation Convention, supra note 55, the exception is somewhat wider and includes liability for damage caused to ‘harbour works, basins and navigable waterways’. Protocol of signature, Article 2(a), compared with Article 1(c). 64 CMI Yearbook 2004, supra note 57, at 489–494 and 531–537. 61

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from the global limitation, HNS claims should be excluded. The LLMC Protocol 1996 allows a ratifying state to exclude HNS claims from global limitation, but only a few of the state parties to the LLMC Protocol 1996 appear to have made this reservation.65 In countries that have not made the reservation, the minimum limit of liability in the HNS Convention, i.e., SDR 10 million for the vessels up to 2,000 gross tonnage, would be meaningless if the same claims could be limited by the LLMC Protocol 1996 to SDR 1 million (or SDR 3 million if there personal injury claims as well). For larger vessels the difference diminishes and is eventually eliminated for very large vessels over 115,667 gross tonnage. However, the HNS claim might have to share the amount of the global limit with other claims arising out of the same incident. For the claimant it would probably not matter if the HNS Fund would cover the claims (up to its quite high limits), but the real beneﬁciaries of this overlap would be the shipowner and his P&I Club, whose total liability would be substantially lower. For states that are parties to the 1957 Limitation Convention or the original LLMC 1976, but not the 1996 Protocol, there could be a problem, as HNS claims are not excluded from the scope of global limitation.66 The question was debated at the time of adoption of the HNS Convention and the LLMC 1996 Protocol. The issue was ostensibly solved by including a ‘supersession clause’ as Article 42 in the HNS Convention stating that the HNS Convention supersedes any existing convention that is in conﬂict with it, i.e., applying the principle that a posterior lex specialis supersedes older general law (in this case the global limitation).67 This is the same solution as when the CLC 1969 Convention was adopted (in relation to the 1957 Limitation Convention), and there have been no known cases, which would have tried to apply the global limitation to oil pollution claims falling under the CLC Convention. If, indeed, it is clear that HNS claims are not subject to global limitation, then making the reservation mentioned at the beginning of this paragraph would be meaningless. Finally, the other speciﬁc limitation regimes, the limitations of cargo and passenger liability, apply limits per unit of cargo or per passenger. These already limited claims may then have to compete with other claims within the global limit, thus further reducing the amount of compensation for the individual claimant.68 This may be perceived as even more unjust to the individual claimant, but it is not an issue particular to places of refuge and the port of

65

University of Southampton, Institute of Maritime Law, ed., Ratiﬁcation of Maritime Conventions (London, Lloyd’s of London Press Ltd., 2004), I.2–96. 66 P. Griggs and R. Williams, Limitation of Liability for Maritime Claims (London, Lloyd’s of London Press Ltd., 1998), 72. 67 IMO, supra note 61. 68 LLMC 1976, supra note 66, 93–94.

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refuge would hardly be affected by these types of claims. On the other hand, pollution from bunkers may become an issue in connection with a vessel seeking refuge and is of concern for the authorities of the place of refuge, who would be directly involved with and incur costs for efforts to prevent or limit the pollution and for the clean up. As stated above, the liability under the Bunker Convention is based on strict liability, backed by compulsory insurance and the right to claim directly against the insurer. But liability for pollution from bunkers is not excluded from the scope of the global limitation. This means that claims for damage, prevention and clean up would have to compete with all other claims subject to the global limitation, which arise out of the same incident. However, there may be claims relating to environmental damage arising out of bunker pollution that are not limitable at all under the global limitation regimes.69 The right to claim directly against the insurer would not enable claimants to recover more money because the liability insurer is entitled to the same limitation of liability as the liable shipowner. The insurer is entitled to limited liability (and this relates to other pollution liabilities as well) even if the shipowner would have lost his right to limit.70 The sections above have shown that, although the shipowner is liable to pay compensation for damage caused by him and his normal insurance does provide cover for his liabilities, with very few exceptions the liability is limited. The limits of liability, which are quite low in the older conventions, have been raised in subsequent conventions and amendments to them. However, in a major casualty involving a multitude of claims, it is likely that the claimants will not receive full compensation for their losses. The 1957 Limitation Convention may actually be more advantageous for claimants in that it only allows the shipowner to limit his liability if the loss or damage was caused without ‘the actual fault or privity of the owner’.71 Furthermore, the burden of proof is determined by the lex fori,72 which means that in common law countries the owner has the burden of disproving his actual fault or privity. Under LLMC 1976, as well as most of the speciﬁc liability regimes, the right to limit is only lost if it is proved that damage or loss was caused by the owner’s

69 See C. Wu, “Liability and Compensation for Bunker Pollution”, 33 Journal of Maritime Law & Commerce, No. 5 (October), 2002, 563–564 and K. Bright, “International Convention on Civil Liability for Bunker Oil Pollution Damage”, The Swedish Club Letter No. 3–2001 (December–March), 14–15. 70 C. Anderson and C. de la Rue, “Liability of Charterers and Cargo Owners for Pollution from Ships”, 26 Tulane Maritime Law Journal, No. 1 (Winter), 2001, 57. 71 1957 Limitation Convention, supra note 55, Article 1(1). The same criteria applied, for example in CLC 1969, supra note 39, Article V.2. 72 F. Berlingieri and K. Pineus, “Limitation of Liability of Shipowners; The General Limits”, in: ESCAP, Essays on Maritime Legislation Vol. I, (United Nations, U.N. Publ. No. ST/ESCAP/791, 1990), 267.

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‘personal act or omission, committed with the intent to cause such loss, or recklessly and with knowledge that such loss would probably result’,73 i.e., the right to limit the liability is virtually unbreakable. There are sentiments, particularly within the European Union, that the owner’s right to limit liability for pollution claims should be more easily ‘breakable’. It has even been suggested that a return to the previous ‘actual fault or privity’ regime regarding loss of the right to limit liability should be considered.74 On the other hand, it has also been argued that a weakening of the owner’s right to limit for pollution claims would not increase compensation to claimants but would only result in less money being payable by the IOPC Fund, and might also lead to more litigation, which would be detrimental to pollution victims, because they would have to wait longer to receive compensation.75 Be that as it may, a shipowner’s right to limit his liability is dictated by public policy, and the strength of that right and whether the limits of liability are fair or sufﬁciently high is ultimately a question of feasibility and politics. The fact remains that if and when the shipowner is liable, his liability is normally covered by his standard marine hull insurance policy and P&I Club entry.

LIABILITY, INDEMNITY AND THE ‘PAY TO BE PAID’ RULE The limitation of the shipowner’s liability for most types of claims for loss or damage and the ensuing possibility that a victim of such damage may not be able to get full compensation for his loss is a concern for potential places of refuge. However, it is that same limitation that has kept the liabilities commercially insurable so that at least some compensation would be ensured. There is another factor in the insurance cover that potentially is a greater concern and that is the fact that insurance for a shipowner’s liabilities is actually indemnity insurance, not liability insurance. Liability insurance means that the insurer provides cover for incurred liabilities, whereas indemnity insurance means that the insurer promises to indemnify the assured when the assured has incurred and discharged liabilities,76 i.e., to reimburse him when he is ‘out-of-pocket’. The principle that a shipowner must have paid compensation to the victim ﬁrst before he can make a claim against

73 LLMC 1976, supra note 56, Article 4. The same criteria are used in all modern conventions, see, Athens Convention, 1974, supra note 34, Article 13; CLC 1992, supra note 39, Article V.2; the Hague-Visby Rules, supra note 28, Article IV.5(e) and the Hamburg Rules, supra note 29, Article 8.1. 74 P. Wetterstein, “Miljöskadeansvaret till Sjöss efter Erika- och Prestigeolyckorna”, 140 Tidskrift Utgiven av Juridiska Föreningen i Finland, No. 5, 2004, 628. 75 Anderson and de la Rue, supra note 70, at 57–58. 76 Griggs and Williams, supra note 66, 351.

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the insurer is very clearly expressed in P&I Club rules along the following lines: Unless the Directors in their discretion otherwise decide, it is a condition precedent of an Owner’s right to recover from the funds of the Association in respect of any liabilities, costs or expenses that he shall ﬁrst have discharged or paid the same out of funds belonging to him unconditionally and not by way of loan or otherwise.77

This is called the ‘pay to be paid’ rule and is a central feature of P&I (protection & indemnity) insurance. The P&I cover is further speciﬁcally restricted to the ‘legal liability’ that the shipowner has incurred, i.e., the liability must, in principle, have been determined by a judgement by a competent court or an arbitration award, and the judgement or award should be ﬁnal in the sense that no further appeal is possible. P&I Clubs will, however, also accept a settlement agreement approved by the P&I Club78 and use their discretion to allow the shipowner not to pursue the right of appeal, if the appeal is deemed futile. For a third party claimant the ‘pay to be paid’ rule presents a real problem, since it could take years to pursue the claim, possibly in a foreign jurisdiction, through all stages of appeal. And when the liability of the shipowner has been ﬁnally established, then the claimant would have to enforce it against the shipowner, possibly in another foreign jurisdiction. The ‘pay to be paid’ problem would not only arise because the shipowner is prevented from paying voluntarily by his insurance terms, but also when the liable shipowner does not pay because cannot pay due to insolvency. The common law principle of equity has had the effect that the shipowner would have the right to demand payment from his P&I insurer prior to paying compensation to the victim if making that payment would ﬁnancially ruin the shipowner. However, this principle of equity does not give a third party claimant any rights directly against the indemnity insurer as the claimant is not a party to the contract of insurance. In the United Kingdom, claims have been made against P&I Clubs under the Third Parties (Rights Against Insurers) Act 1930.79 But the ‘pay to be paid rule’ has been upheld based on the argument that before the insured has actually paid the claim, he only has a contingent right against the club to seek indemnity, and if the requirement to pay ﬁrst is a clearly worded contractual condition precedent for seeking indemnity, a third party cannot acquire a better right than the assured had.80 The principle of indemnity rather

77

UK Rules, supra note 1, Rule 5A. See also Gard Rules, supra note 1, Rule 87.1. Gold, supra note 12, 118–119 and Gard Rules, supra note 1, Rule 87.2. 79 Third Parties (Rights Against Insurers) Act 1930, (UK) 1930, c. 25. 80 See Griggs and Williams, supra note 66, 309–319 and 351–357 for a comprehensive analysis of direct action, the ‘pay to be paid’ rule and the leading case on this issue.“The Fanti and the Padre Island”, [1990] 2 Lloyd’s Rep. 191. See also G. Gauci, 78

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than liability applies to the collision liability as well, at least under English hull policies, according to which The Underwriters agree to indemnify for three-fourths of any sum or sums paid by the Assured to any other person or persons by reason of the Assured becoming legally liable by way of damages for . . .81

The wording of the relevant rules of the P&I Clubs are clear and have been drafted with a view to ensure the insurer’s immunity against direct action. The wording of the hull clauses appears equally clear, but the absence of clear words making the payment by the assured a condition precedent for indemniﬁcation may give a third party an opportunity to invoke the Third Parties (Rights Against Insurers) Act 1930 in relation to collision liabilities.82 The common law rules regarding indemnities would be the same in the United States, but many state laws as a matter of public policy speciﬁcally ban or negate ‘pay to be paid’ clauses, or ‘no action’ clauses as they are called, only requiring a judgement against the liable party before proceeding against the insurer. In such states, insurance policies for indemnity are effectively transformed into liability insurance policies, but there is conﬂicting case law on whether or not claimants have the right of direct action against P&I Clubs.83 In civil law countries, however, third parties can claim directly against the insurer if the liable shipowner has become insolvent.84 The relevant clause in the Norwegian Marine Insurance Plan 1996 gives the impression of being liability insurance rather than indemnity insurance in that it does not contain words to the effect of requiring that the assured has paid the claim ﬁrst.85 Although the strict application of the ‘pay to be paid’ principle appears to be primarily restricted to English law, the restriction on third parties’ access to direct action is a very signiﬁcant one, not only because the United Kingdom is a very common choice of law and jurisdiction in contracts, but, in the current context, also because a very signiﬁcant portion of all P&I insurance is covered by clubs and/or club managers based in the United Kingdom. As a result, any attempted direct action would need to be brought into English courts, which would, presumably, not allow direct action.

Oil Pollution at Sea. Civil Liability and Compensation for Damage (Chichester, John Wiley & Sons Ltd., 1997), 221–227. 81 Time Clauses 8, supra note 7; Voyage Clauses 6, supra note 7; and Hull Clauses 6, supra note 7. 82 Bennett, supra note 18, 343. 83 Griggs and Williams, supra note 66, 319–320. 84 Gold, supra note 12, 119. See also M. Sturley, “Marine Insurance in the United States”, in: Huybrechts, et al., supra note 23, 157. 85 Norwegian Marine Insurance Plan of 1996, §13–1.

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The one notable exception, and it is a signiﬁcant exception, to the restriction on direct action is in relation to the pollution liabilities under the CLC, HNS and Bunker Conventions, which all contain provisions for compulsory liability insurance (or other ﬁnancial security) and speciﬁcally allow direct action against the insurers.86 In these cases the P&I insurer cannot use the ‘pay to be paid’ rule as a defence, but the insurer is entitled to invoke the same limits of liability and the same defences as the liable shipowner. The only additional defence the insurer may invoke is that the pollution was caused by ‘wilful misconduct of the owner himself’.87 In normal conditions it can be expected that shipowners do try to honour their liabilities and that, objectively, shipping companies are hardly more prone to bankruptcy than other businesses. But if a vessel has incurred signiﬁcant liabilities and at the same time suffered considerable damage itself, the risk is apparent, particularly in poor market conditions, that the shipowner may abandon the damaged vessel and try to walk away from his liabilities. The very common structure of one-ship companies and less than transparent ownership make this easier to do and maybe more tempting. In any case a claimant may be well advised to seek arrest of the vessel while it is still in the place of refuge to secure the claim and to make the subsequent enforcement easier, and possibly also to have an effect on determining in which jurisdiction the substantive claim can be pursued. As a result of an arrest, if the shipowner does not abandon the vessel, he would probably try to apply ‘damage control’ by constituting a limitation fund under the applicable global limitation regime, thereby invoking the right to limit his liability but also providing funds or other security for the beneﬁt of the claimants. In many cases a letter of undertaking, issued by a P&I Club, will be accepted as an alternative to depositing cash in the court,88 and P&I Clubs do issue such undertakings for liabilities covered by the P&I insurance. When a P&I Club issues a letter of undertaking it does so as a purely discretionary service to their members.89 They do so quite often, and when they do they actually provide a guarantee for payment of the claim once the validity and extent of the claim has been proven. Effectively this means that the P&I insurer surrenders the ‘pay to be paid’ defence and makes the insurer liable to pay directly to the third party.

86

CLC Convention, supra note 39, Article VII; HNS Convention, supra note 42, Article 12; Bunker Convention, supra note 43, Article 7. 87 See, however, G. Gauci, supra note 79, 225–226, who notes that the national enactment of this provision in the United Kingdom in the Merchant Shipping Act 1995, (UK), 1995, c. 21, may still allow the ‘pay to be paid’. 88 See, for example, K. X. Li, “Acceptability of P&I club letters as security”, International Journal of Shipping Law, Part 2 (June) 2000, 76–86. 89 Griggs and Williams, supra note 66, 285–288 and Gold, supra note 12, 484 and 502. See also Gard Rules, supra note 1, Rule 88.

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A comprehensive review of the justiﬁcation or even legality of the practice of demanding guarantees, bonds or other ﬁnancial security as a condition for granting a vessel a place of refuge cannot be undertaken here, but it is a controversial issue.90 Firstly, the United Nations Convention on the Law of the Sea, 1982, does not allow charges to be levied on ships for providing general services but ‘as payment only for speciﬁc services rendered to the ship’.91 Secondly, any charges levied should reﬂect the actual cost of providing such special services, which would be difﬁcult to assess prior to actually rendering any services. Thirdly, under customary international law, vessels in distress have, for humanitarian reasons, enjoyed exemptions from public charges.92 And ﬁnally, international conventions grant shipowners the right to limit their liabilities in many cases and also limit the right of states to recover costs or damages over and above those limits. Van Hooydonk states that by demanding ﬁnancial security the state ‘takes the law into its own hands and avoids having its claims assessed by an independent judicial authority’ and that any policy to seek such security would have to be based on very clear national legislation.93 In many countries such legislation does not appear to exist, although guarantees may still be demanded on occasion. There are, however, countries that have enacted legislation allowing state authorities to demand guarantees. One example is the Belgian Marine Environment Protection Act, 1999, under which a ship that has been involved in a casualty and poses a threat to the environment may be required to post a bond, bank guarantee or P&I Club letter of undertaking. The Belgian act may not be perfect, but it is clear and appears fair in so far as the amount of the bond is limited to the maximum limits of liability established in relevant international conventions and Belgian law and that refusal to provide the requested guarantee may lead to detention of the vessel94 (rather than refusing assistance completely). A much more controversial example of national legislation is the Spanish Royal Decree 210/2004, issued on 6 February 2004.95 The Royal

90

For a comprehensive analysis of this issue see, for example, E. Van Hooydonk “The Obligation to Offer a Place of Refuge”, Lloyd’s Maritime and Commercial Law Quarterly, Part 3 (August) 2004 (hereafter Hooydonk, Obligation), 347–374. 91 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN Doc. A/CONF.62.122, 7 October 1982, Article 26. 92 E. Van Hooydonk “Some Remarks on Financial Securities Imposed by Public Authorities on Casualty Ships as a Condition for Entry into Ports”, in: Huybrechts, et al., supra note 18 (hereafter Hooydonk, Remarks), 132–134. 93 Hooydonk, Obligation, supra note 90, 370. 94 Hooydonk, Remarks, supra note 92, 135, which refers to Art. 24 of the Belgian Marine Environment Protection Act, 1999. This act is discussed more fully in Chapter 15. 95 Royal Decree 210/2004 on the monitoring and information of the maritime trafﬁc,

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Decree provides that Spanish authorities do not have an obligation to provide refuge to a ship in need of assistance and allows them to require a guarantee as a precondition for granting refuge. The amount of the guarantee can be very high96 and may by far exceed the limits of the shipowner’s liability under all existing international liability conventions. In addition, and possibly most controversial, is the possible requirement that the shipowner denounces his right to limit his liability under such international conventions and their national enactments.97 Quite apart from safety and humanitarian aspects of making a place of refuge contingent upon providing a guarantee in advance, it raises the question of the legality of such a demand, as a matter of legal principle. One might argue that any such ‘voluntary’ agreement to give up the right of limitation could later be contested on the grounds that it was made under duress. On the other hand, such guarantees could be useful if they provide ports with an incentive to offer a vessel in need of assistance a place of refuge by alleviating any fears they may have of suffering damage or disruption without assurance of receiving reasonable compensation. To this end, the International Group of P&I Clubs has drafted a standard letter of guarantee to cover the shipowner’s liabilities for wreck removal and pollution up to an aggregate amount of US$ 10 million.98 At the meeting of the IMO Legal Committee in April 2005, the International Group of P&I Clubs, noting that some delegations had expressed concern that the limit of US$ 10 million was too low, explained that the ﬁgure was only indicative, but also pointed out that its intention ‘was not to propose a voluntary scheme, but merely to inform the Committee about existing practice of the P&I Clubs’.99 In a real situation the actual ﬁgure would, therefore, be determined by the demands of the relevant authorities of the coastal state and possibly be subject to negotiation between those authorities and the relevant P&I Club. It is, however, of utmost importance that the amount and form of the demanded security are not formulated in a way that causes such loss of time in negotiating about or attempting to meet the demands of the authorities that the safety of the vessel in need of assistance is further jeopardised or the risk of pollution increased.100 Any policy or practice of demanding Bolet’n Oﬁcial del Estado No. 39, 14 February 2004, 6868–6878 (hereafter Royal Decree). 96 The amount for tankers can be up to €7 million for vessels up to 2,000 GT plus up to €10,000 per GT for every additional gross tonne. 97 Royal Decree, supra note 95, Art. 21(5)(g). See H. Ringbom, “You are Welcome, but . . . – Places of Refuge and Environmental Liability and Compensation, with Particular Reference to the EU”, in: Simply 2004 – Scandinavian Institute of Maritime Law Yearbook 2004 (Oslo, Sjørettsfondet, 2004), 137–182. 98 IMO Doc. LEG 89/7/1, 24 September 2004, amended by IMO Doc. LEG 90/8/2, 17 March 2005. 99 IMO Doc. LEG 90/15, 9 May 2005, para. 386. 100 Hooydonk, Obligation, supra note 90, at 370.

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guarantees for excessive amounts, which bear little relation to the risk of potential damage and whose real purpose is to discourage vessels from seeking assistance or to preclude refuge, would appear difﬁcult to justify.

CONCLUSION When a vessel is in need of assistance, any hesitation on the part of a port to provide refuge would probably be based on a fear of pollution or physical damage and disruption to its normal operations. On the other hand, such hesitation should reasonably be alleviated by the assurance that the port or place of refuge would be fully, or at least reasonably, compensated in a timely fashion for any such damage or disruption. As the previous sections have shown, the fact that the shipowner’s liability, in most cases, is limited by statute may actually be valid reason to hesitate to grant refuge. Whether the limits of liability are appropriate or too low is purely a question of policy, but it must also be noted that the limits of liability have been raised over the years. In particular, the total amounts available for compensating oil pollution damage from tankers have been increased signiﬁcantly and it is a fact that in the past, the available compensation has proved to be insufﬁcient in very few actual casualties. It should also be added that, regardless of liability and compensation, refusal of a place of refuge would only be justiﬁable if the total potential damage thereby could be objectively estimated to be reduced and not merely shifted to another place, ‘someone else’s backyard’. Any decision on whether to grant or refuse a place of refuge should be based on risk assessment, not on risk aversion. We have also seen that if and when the shipowner is liable, his H&M and P&I insurance will normally cover all legally established liability that he may have incurred. Primarily this insurance cover is in the form of indemnity and directly only accrues to the beneﬁt of the liable shipowner. However, if third parties have the right of direct action against the insurer, either statutorily or by way of contract, the conclusion is that existing standard insurance terms do provide cover for payment of compensation for the liabilities that the shipowner incurs.

Chapter 13 Refuge and Recovery in General Average Hugh Kindred* INTRODUCTION: ASSISTANCE AND AVERAGE1 Taking refuge is an act of self-preservation by a ship in distress. It is supported by the ancient maritime practice of general average,2 which favours the mas-

* The author gratefully thanks his colleague, Dr Moira McConnell, for her helpful review of a draft of this chapter. 1 This chapter draws upon the author’s previous writing on general average in E. Gold, A. Chircop and H. Kindred, Canadian Maritime Law (Toronto, Irwin Law Inc., 2003), Chapter 16. Major reference works about general average include, L. J. Buglass, Marine Insurance and General Average in the United States, 3rd ed. (Centreville, MD, Cornell Maritime Press, 1991); N. G. Hudson, The York-Antwerp Rules, 2nd ed. (London, LLP, 1996); Sir Michael Mustill and J. P. Gilman, Arnould’s Law of Marine Insurance and Average, 16th ed., 3 vols. (London, Stevens, 1981 and 1997); F. D. Rose, General Average Law and Practice (London, LLP, 1997); D. J. Wilson and J. H. S. Cooke, Lowndes and Rudolph: The Law of General Average and the York-Antwerp Rules, 12th ed. (London, Sweet & Maxwell, 1997) (hereafter Lowndes and Rudolph). 2 For the history of general average see, K. Selmer, The Survival of General Average (Oslo, Oslo University Press, 1958) 19–57; Hudson, supra note 1, at 1–4; and Lowndes and Rudolph, supra note 1, at 1–11.

347 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 347–371. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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ter’s decision to seek safety in the face of peril on the seas rather than risk the ship and the voyage. Indeed, general average is the oldest response to the position of ships in need of assistance. In essence, general average is a simple proposition of self-help: when a ship encounters danger and difﬁculty, the master may take whatever action he deems necessary for the common safety of the voyage, and the parties to it must contribute proportionately to the losses incurred by his acts. In other words, general average is about sharing the losses and expenses deliberately incurred for the common safety of all the interests in the voyage. For instance, a ship may be in need of assistance as the result of an unexpected casualty on the voyage, such as damage or disablement by unusually bad weather. In seeking a place of refuge, the ship may have to sacriﬁce part of its equipment or its cargo to recover its stability, or to pay for the service of a tow, in order to reach safety. These intentional losses and expenses incurred for the common beneﬁt would, therefore, fall to be adjusted according to the principles of general average. Speaking generally, general average is a special regime of civil liability amongst the parties to a carriage of goods by sea. It does not address issues of third party liability, i.e., responsibility to interests beyond the ship, such as other vessels damaged in collision, pollution of the oceans or destruction of ﬁshing gear.3 It does disturb the ordinary rules of private law for the allocation of responsibility and the assessment of compensation between the contracting parties, i.e., shipowner and cargo owners, but it does not alter the public law obligations of the ship either to the ﬂag state and its administration or to a coastal state or port which it may be passing or visiting. Issues around ships in distress or in need of assistance are mainly public law concerns. They address the needs of distressed shipping, the protection of the marine and coastal environment, and the rights and obligations of affected states and governments. In the development of international maritime law to govern these public concerns, a distinction has grown up between ships in distress and vessels in need of assistance.4 A ship in distress implies human life is at risk to which the required response is search and rescue, as admonished by the International Convention on Maritime Search and Rescue, 1979 (SAR Convention).5 A ship in need of assistance is a vessel in difﬁculty but without danger to human life. An appropriate response may be the provision of a port or

3 Third party liability for damage caused by ships in distress is addressed by Gotthard Gauci in Chapter 11 and chapter 12 by Patrick Donner of this volume. 4 IMO, Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Res. A.949(23), 5 December 2003, IMO Doc. A 23/Res. 949, 5 March 2004, Annex Arts. 1.1, 1.13, 1.14 and 1.18, reproduced in the Annex to Chapter 2 of this volume (hereafter IMO Guidelines). 5 International Convention on Maritime Search and Rescue, 27 April 1979, 1405 U.N.T.S. 97.

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place of refuge, as the IMO Guidelines on Places of Refuge6 would indicate. It must be obvious that the plight of a ship in trouble at sea may change, demanding a different response as its situation alters. Thus, a laden tank ship that suffers an engine breakdown, may drift helplessly at sea and clearly requires assistance to a place of refuge, yet no special danger to human life may be involved. However, if the weather were to change so that ﬁerce winds and waves might drive it onto rocks, it would surely be in distress and the master and crew in need of rescue. However, the distinction between a ship in distress and one in need of assistance is of no relevance in general average for two reasons. First, general average is not about deciding what kind of response should be made by public authorities at the time the ship is in danger. It is an after-the-fact allocation of the losses incurred as a consequence of the choice of response made to the ship’s plight. Secondly, general average does not distinguish between danger to the ship and cargo alone and danger to the life of those on board. General average is triggered by any peril to the ship and provides a special compensatory regime for loss intentionally incurred to protect the safety of all life and all property involved in the voyage. In discussion in this chapter, therefore, references to ships in distress, in need of assistance or in need of refuge may be read interchangeably, the crucial question for general average being whether the ship faced peril.

Nature and Scope of General Average The unique maritime concept of general average often seems obscure. The ﬁrst difﬁculty is the meaning of the phrase ‘general average’ itself. The historical origin of the English expression ‘average’ is uncertain: it may be a derivation of the French word ‘averie’, meaning damage or loss.7 Thus ‘general average’ is simply a common loss. It is used to distinguish ‘particular average’ which is another antique phrase that signiﬁes the ordinary case of individual loss. The commonality of loss is the clue to understanding the concept of general average. Ordinarily, when loss is sustained to person or property, it falls on the victim or injured party unless s/he can assert a claim in restitution or compensation by establishing the culpable causation of some wrongdoer. So in shipping incidents in which cargo is damaged, the cargo owner will bear the loss unless it can sustain a compensatory claim against the carrier for, perhaps, negligence in caring for the cargo or unseaworthiness of the ship. Similarly, if the cargo 6 IMO Guidelines, supra note 4. See also IMO, Maritime Assistance Service, IMO Res. A.950(23), 5 December 2003. 7 See M. Davies and A. Dickey, Shipping Law, 2nd ed. (Sydney, LBC Information Services, 1995), at 520; Lowndes and Rudolph, supra note 1, at 7–8.

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being carried turns out to be dangerous and causes damage to the ship, the shipowner will bear the loss to the ship unless it is able to establish the liability of the cargo owner for shipping dangerous goods without adequate notice, handling instructions and packaging. The regime of general average imposes a different allocation of loss, namely a sharing of the loss amongst all the interests involved in the voyage. The common interests can be numerous. They will always include the shipowner and the cargo owners, who may number in hundreds on a large, fully laden container vessel. In addition, the freight (or cost of carriage), as distinct from the ship, may also constitute a separate interest,8 as well as any charterers or subcharterers. The effect of the principle of general average is that the individual loss, whether to the shipowner or the cargo owner, is redistributed amongst all the parties interested in the voyage. Each is required to bear a proportionate share of the actual loss admitted in general average by paying compensation pro rata to the injured interest. As a result, the injured party receives compensatory contributions from all the other parties and only has to bear its proportional share of its total loss. As an exception to the ordinary principles of individual loss, contributory compensation in general average only occurs in very particular circumstances. The object of general average is to support the principle of maritime safety by permitting the deliberate incurrence of loss in exceptional circumstances, namely when the ship is in peril. Thus the general average regime only operates when a ship takes measures to evade a peril for the common safety of the voyage.

Regulation of General Average by the York-Antwerp Rules General average has been governed for centuries by the maritime law of individual countries, which have applied somewhat similar rules. While no uniform regime has been established by international law, nowadays general average is most often regulated by the York-Antwerp Rules. These Rules have no mandatory force since they were concluded, at least in modern times, by the Comité Maritime International (CMI), which is an international association of national associations of maritime lawyers and like-minded professionals. As a non-governmental organisation, the CMI has no authority to make law. However, the York-Antwerp Rules have long found general acceptance in the global shipping community9 and have therefore attained a standard of worldwide respect and

8

Discussed infra at note 23. ‘It may safely be said that general average is the ﬁeld of maritime law where the international uniﬁcation effort has succeeded to the greatest extent’. Selmer, supra note 2, at 58. 9

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application. Accordingly, the discussion in this chapter about the operation of general average when a ship seeks a place of refuge will proceed on the basis that the York-Antwerp Rules, in their latest version, govern. As a code of voluntary application, the York-Antwerp Rules are brought into operation by incorporation in the terms of standard shipping contracts such as charter parties, bills of lading and sea waybills. The usual form of incorporation is a short clause in the shipping contract which records the parties’ agreement that general average will be adjusted by reference to the York-Antwerp Rules. Most courts in most parts of the world will accept and enforce such a contractual choice of governing rules.10 The York-Antwerp Rules were ﬁrst promulgated in 1864 and have been successively revised or amended eight times since then.11 The current version of the Rules was issued in 2004 but it does not, indeed, because of their voluntary character, it cannot, repeal or overreach earlier revisions. Hence care must be taken to specify the latest version of the Rules when incorporating them by reference into shipping contracts. Even so, copies of carriers’ standard forms of contract printed with their trading terms that refer to earlier versions of the York-Antwerp Rules are still in use even though there were very signiﬁcant changes made to them in the 1974, 1990, 1994 and 2004 revisions. The York-Antwerp Rules 200412 constitute a complete regime for the admission and adjustment of general average. They consist of two opening rules, the Rule of Interpretation and the Rule Paramount, seven lettered rules, Rules A–G, expressing the general principles of general average, and twenty three numbered rules, Rules I–XXIII, dealing with particular situations that commonly attract general average claims. The opening Rule of Interpretation states: In the adjustment of general average the following Rules shall apply to the exclusion of any Law and Practice inconsistent therewith. Except as provided by the Rule Paramount and the numbered Rules, general average shall be adjusted according to the lettered Rules.

This statement is an important directive about the application of the YorkAntwerp Rules. It gives primary importance to the numbered rules. Thus, for any general average incident, one must determine whether it has been anticipated and regulated by a detailed rule, that is, by one of the numbered rules. Only when the situation is not covered by a numbered rule may recourse be had to the more general lettered rules. Indeed, if there is any conﬂict between the

10 Except where local law mandates a different conclusion, because no contractual agreement can overreach binding law. 11 See Hudson, supra note 1, at 7–13; Lowndes and Rudolph, supra note 1, at 41–61. 12 Approved by the XXXVIIth Conference of the CMI at Vancouver, Canada, 4 June 2004, and recorded in the CMI Yearbook 2004, (Antwerp, CMI, 2004) (hereafter YorkAntwerp Rules 2004), at 366–385.

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consequences of the application of numbered and lettered rules, as there is likely to be for claims by ships in places of refuge, the detailed, numbered rules overreach the general principles of the lettered rules.13 General average adjustment is an extraordinarily technical business which depends upon a large body of specialised practice around the York-Antwerp Rules. Most claims of general average require for their resolution the assistance of a distinct professional class of average adjusters, who, in addition to expert knowledge of ships, are the principal practitioners of the York-Antwerp Rules. By comparison, this chapter only aims to explain in a general way the impact that general average may have on ships in need of assistance and refuge.

Requirements of General Average under the York-Antwerp Rules To appreciate the consequences of general average for a ship in distress it is necessary to have a broad understanding of the features of general average. In practice, four elements must be proved to substantiate a claim in general average before the process of adjustment of the loss can be made amongst the parties to the voyage. The requirements for a valid claim in general average are set out by the York-Antwerp Rules in Rule A(1): There is a general average act, when, and only when, any extraordinary sacriﬁce or expenditure is intentionally and reasonably made or incurred for the common safety for the purpose of preserving from peril the property involved in the common maritime adventure.

Hence loss suffered by a ship in distress or in need of assistance will only be admitted in general average if there was: – – – –

an extraordinary sacriﬁce or expenditure that was intentionally and reasonably made in a time of peril for the common safety of the voyage

Each of these technical requirements needs to be considered individually, so Part II of this chapter will discuss what kinds of acts causing loss will qualify and Part III will address the other features that must be present in association with those losses. 13 This approach seems to be followed in general average practice even though U.S. federal courts are not all in agreement: compare Orient Mid-Express Lines v. Shipment of Rice on Board S.S. The Orient Transporter, 496 F. 2d 1032 (5th Cir. 1974) and Eagle Terminal Tankers v. Insurance Co. of U.S.S.R. (The Eagle Courier), 637 F.2d 890 (2d Cir. 1981).

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More particularly, general average may result from damage and destruction of property or from ﬁnancial expenses incurred. The York-Antwerp Rules carefully distinguish the kinds of losses that are admissible as general average and those that are excluded. The sharp distinction inevitably will impact the decision as to who bears the costs and losses that may result from actions taken by a ship in distress or in need of assistance. Hence Part II of this chapter will identify which kinds of losses will fall within general average when a ship’s master makes a) sacriﬁces of property in distress and b) extraordinary expenditures, such as c) expenditures in seeking refuge, and d) expenditures in a place of refuge. Yet proof of a general average act is not the end of the matter. A valid claim for general average contributions still requires assessment of the value of the losses and of the saved property. This is the process of adjustment of general average, which will be discussed very brieﬂy in Part IV, before concluding in Part V with some remarks about the enlargement of general average claims that may be expected, depending on the outcome of the current international discussion about the conditions upon which ships in need of assistance will be provided with places of refuge.

GENERAL AVERAGE ACTS As Rule A, above, states, the kinds of loss admissible as general average must have resulted from ‘extraordinary sacriﬁce or expenditure’. The loss is termed ‘extraordinary’ to signify it is not an ordinary or typical incident of the voyage. ‘Sacriﬁce’ inherently conveys this feature of general average loss which ‘expenditure’, were it unqualiﬁed, would not. Loss by sacriﬁce involves the deliberate destruction of some part of the ship and/or the cargo in order to relieve the ship’s distress. Loss incurred by expenditure similarly involves deliberate expense to avoid or to mitigate the impact of a peril in the voyage. A ship in need of assistance is likely to make expenditures both in seeking a place of refuge as well as in that place. Since the situations in which sacriﬁces and expenditures are admitted in general average are different and are closely regulated by the York-Antwerp Rules, they will each be considered separately in turn.

Sacriﬁces in Distress In times of peril at sea, a ship’s master may consider it advisable to lighten the vessel or to cut away sound equipment, machinery or cargo that threatens its stability. Jettison of cargo is probably the classic example of a general average

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sacriﬁce.14 But other kinds of deliberate injury to cargo are also admissible. Cargo damage, including water damage incidentally suffered in jettisoning other cargo15 or in extinguishing a ﬁre on the ship16 are admissible losses. Parts of the cargo that are necessarily consumed as fuel17 or that are damaged as a result of handling, discharging, storing, reloading or stowing in a place of refuge18 are also general average losses. Sacriﬁces by the ship may be of machinery, equipment or stores, or even of the whole vessel. For instance, when a ship, which is taking in seawater dangerously in excess of its pumping capacity, is intentionally run ashore for the common safety, its loss is allowed in general average.19 By contrast, its involuntary stranding would not be. Similarly, damage done to the ship in the course of efforts to extinguish a ﬁre on board is an admissible loss.20 Also, damage caused to the machinery and boilers of an involuntarily stranded ship in efforts to reﬂoat it for the common safety will be allowed in general average,21 however further loss in cutting away wreck or accidentally damaged parts of the ship is not admissible.22 This distinction in admissibility of dependent losses demonstrates the distinctiveness of a general average act: it must be committed for the common safety of a ship in distress. The freight, that is the cost of carriage, in addition to the ship, may also be affected by a general average act. Since freight is traditionally earned upon delivery of the cargo at destination, a general average sacriﬁce of ship or cargo en route may prevent full delivery. The shipowner will consequently suffer further loss as a result of the sacriﬁce and so may claim the freight it was prevented from earning. However, the gross freight lost must be reduced by the costs that, but for the sacriﬁce, would have been incurred to earn it. Frequently however, the agreement for carriage requires the freight to be prepaid or declares it due ‘ship and/or cargo lost or not lost’ so then the shipowner has no need to claim lost freight.23

14

York-Antwerp Rules 2004, supra note 12, Rule I. Ibid., Rule II. 16 Ibid., Rule III. 17 Ibid., Rule IX. 18 Ibid., Rule XII. 19 Ibid., Rule V. 20 Ibid., Rule III. 21 Ibid., Rule VII. 22 Ibid., Rule IV. 23 In such instances the risk of wasted overpayment of the freight falls on the cargo owner and is treated in the event of a general average act as part of the cargo value. See Hudson, supra note 1, at 214. 15

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Extraordinary Expenditures General average expenditures are much more common but much harder to delimit than general average sacriﬁces. Two complicating factors need to be considered: the ﬁrst concerns the intended purpose of the expenditure claimed as general average and the second involves the cause of the expense. First, expenditures are always intentional, so there is no such easy distinguishing characteristic as exists for sacriﬁces between voluntary and involuntary losses. Hence a difﬁcult question arises when an expenditure should be regarded as general average or simply an ordinary cost of doing business for the shipowner. The answer depends on whether the expenditure was extraordinary. Expenses are out of the ordinary, and therefore within general average, when, as Rule A above dictates, they are made in the face of peril for the common safety of the voyage. However, the generality of this test is often inadequate to the task, while certain of the numbered rules, discussed below, make special allowance for such considerations as substituted expenses and even ‘artiﬁcial’ general average. Secondly, it may also be difﬁcult to determine whether an expenditure was caused by a general average act, as Rule C paragraph 1 requires: Only such losses, damages or expenses which are the direct consequence of the general average act shall be allowed as general average.

Obviously the expenditure must be related to measures taken by the ship in distress for the safety of the voyage, but how closely? Rule C demands the expenditure to be the ‘direct consequence’ of the general average act, not some remote expense in a long chain of cause and effects. As Rule C continues to explain: ‘expense incurred by reason of delay, whether on the voyage or subsequently, and any indirect loss whatsoever, shall not be admitted as general average’. It is easy to anticipate that a ship in need of assistance is very likely to be delayed in delivery as a consequence, but any loss by delay is causally too remote to be taken into account as general average. It is also easy to appreciate that when a ship in distress hires a tug to rescue it, the expense of the tow is immediately referable to the general average act. But there are many situations in between these obvious examples in which the sufﬁciency of the causal relation between event and expense or loss is in doubt. ‘Direct consequences’ is an opaque phrase that courts have struggled to explain. In deciding the UK Court of Appeal case of Australian Coastal Shipping Commission v. Green24 Lord Denning said:

24

Australian Coastal Shipping Commission v. Green [1971] 1 Q.B. 456.

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Lord Denning continued more helpfully: If the master, when he does the “general average act,” ought reasonably to have foreseen that a subsequent accident of the kind might occur – or even that there was a distinct possibility of it – then the subsequent accident does not break the chain of causation. The loss or damage is the direct consequence of the original general average act.26

Subsequently the Supreme Court of Canada took up the same theme and elaborated it in a case27 that is very instructive about general average expenditures. ‘The Oak Hill’ was carrying a quantity of pig iron when it stranded in the St Lawrence River and had to put into the port of Levis, Quebec, for repairs. The pig iron was of two different qualities, which needed to be kept separate. The repairs to the ship required the cargo to be taken out of the ship and later reloaded, but, in the course of that operation, the two types of pig iron became inextricably mixed. The shipowner claimed this cargo loss should be admitted as general average but the Supreme Court denied it, making a striking distinction on the facts. First, the Court accepted that the unloading of the pig iron was a general average act and, as a consequence, the cost of doing so was a valid general average expenditure. But at that point the Court held the chain of causation was severed. Undoubtedly the cargo loss was causally linked to the unloading operation, which was necessitated by the ship’s need of repairs, but it was not a direct consequence, as required by Rule C, so the Court said, because it found the master had been negligent in his conduct of the unloading. Ritchie J. gave the following opinion for the Court: It appears to me that even if Lord Denning’s views be accepted, it does not mean that a master is to be relieved of responsibility for his own negligence by contending that it was “reasonably foreseeable”. In my view, if it be shown that loss or damage to cargo has been caused through the negligence of the master in carrying out the general average procedure, it can no longer be said that it was the direct consequence of the general average act. The chain of causation is broken by the intervention of a new cause and, in my view, it cannot have been the intention of the committee which adopted the York/Antwerp Rules that a master should be able

25

Ibid., at 461. Ibid., at 462. 27 Federal Commerce and Navigation Co. v. Eisenerz-G.m.b.h. (The Oak Hill), [1974] S.C.R. 1225. 26

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to claim a general average loss because he was able to foresee the possibility that he would be negligent.28

These two cases provide this much guidance on the thorny problem of causation in general average: ‘losses, damages and expenses which are the direct consequence of the general average act’ extends to ‘reasonably foreseeable’ results of the action taken to protect the ship in distress, provided it was not negligently executed.29

Expenditures in Seeking Refuge Salvage Awards Ships in peril at sea frequently engage the services of salvors to help them to a place of refuge. A tow into the nearest safe port after engine breakdown, and assistance to reﬂoat a ship after stranding are simple examples of salvage operations. In practice, salvage operations are very varied, as the expansive deﬁnition in the International Salvage Convention, 1989 (Salvage Convention)30 shows. Salvage includes ‘any act or activity undertaken to assist a vessel . . . in danger . . . in any . . . waters whatsoever’. So a call for the assistance of salvors by a ship in peril, provided it is made for the common safety of the voyage, would appear to be an obvious general average act and expense. Such has been the recognised practice of general average for a great many years,31 as was reﬂected in Rule VI(a) of the York-Antwerp Rules 1994: (a) Expenditure incurred by the parties to the adventure in the nature of salvage . . . shall be allowed in general average provided that the salvage operations were carried out for the purpose of preserving from peril the property involved in the common adventure.

However, this rule was completely reformed in the revision of the YorkAntwerp Rules in 2004. The change occurred in the context of persistent pressure from some members of the insurance community, in particular the International Union of Marine Insurance (IUMI), to reverse the long-standing trend towards expansion of the scope of expenses allowed as general average.32 28

Ibid., at 1242. However, determining the negligence of the master seems contrary to the principle of Rule D, discussed infra at note 65. 30 International Convention on Salvage, London, 28 April 1989, U.K.T.S. 1996 No. 93 (hereafter Salvage Convention), Art. 1(a). 31 See Lowndes and Rudolf, supra note 1, at 303. 32 See the Report of the CMI International Sub Committee on General Average in the CMI Yearbook 2003 (Antwerp, CMI, 2003) (hereafter CMI Report), at 290–292. 29

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Over the objections of the Association Internationale de Dispacheurs Européens (AIDE), a worldwide association of average adjusters, and the International Chamber of Shipping (ICS),33 a new Article VI(a) was approved in the following terms: Salvage payments . . . shall lie where they fall and shall not be allowed in general average, save only that if one party to the salvage shall have paid all or any of the proportion of salvage . . . due from another party (calculated on the basis of salved values and not on general average contributory values), the unpaid contribution to salvage due from that other party shall be credited in the adjustment to the party that paid it, and debited to the party on whose behalf the payment was made.

The impact of the new rule is that the shipowner and the cargo owners will each bear their own salvage costs, calculated on the basis of their salved property values. The adjustment of general average between the parties will not include salvage payments, except to allow an offsetting credit against contributions by one party, typically the shipowner, who happens to pay the whole salvage award, to the extent of reimbursement of the salvage costs payable by the other parties. The reversal in the York-Antwerp Rules regarding salvage claims exempliﬁes the signiﬁcance of contractual incorporation of a particular version of the Rules,34 and is justiﬁed in part by the fact that in most countries payment of salvage awards is already apportioned amongst the ship and cargo owners, so adjustment between the parties in general average is redundant.35

Pollution Costs Concern about pollution of the marine environment has appropriately found its way into the law of the sea. The United Nations Law of the Sea Convention Part XII36 contains umbrella provisions about protection of the oceans from pollution by all users. However, as a general rule, the costs of pollution of the seas by ships in distress are outside of general average because the expenditures are not made for the common safety of the voyage. The ordinary rules of liability apply in accordance with the principle that the polluter pays. As paragraph 2 of Rule C admonishes:

33 See “Position of A.I.D.E. on the Eventual Revision of the York-Antwerp Rules 1994” and “Position Paper by the International Chamber of Shipping”, CMI Yearbook 2004 (Antwerp, CMI, 2004), at 191–192 and 195–200 respectively. 34 Discussed supra in text at note 11. 35 CMI Report, supra note 32, at 291. 36 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN Doc. A/CONF.62/122 (1982).

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In no case shall there be any allowance in general average for losses, damages or expenses incurred in respect of damage to the environment or in consequence of the escape or release of pollutant substances from the property involved in the common maritime adventure.37

Yet, large exceptions were admitted to this lettered rule by amendments to several overriding numbered rules in the 1990 and 1994 revisions of the YorkAntwerp Rules. These revisions reﬂected the new provisions for the protection of the marine environment by salvors incorporated in the Salvage Convention. Salvors now bear an additional duty of care in the way they conduct their rescue operations to prevent or minimise damage to the marine environment. In return for assuming this extra obligation, salvors now have the right to receive compensation for their skill and efforts at protecting the oceans. If the salvage operation is successful, the salvors’ award, which is calculated retrospectively, will include remuneration for their limitation of marine pollution. If the salvage efforts are not successful, so that no reward is earned, the salvors may still receive special compensation for their costs and efforts to protect the marine environment.38 Since the York-Antwerp Rules 1974 admitted salvage awards as general average, revisions had to be made to them in 1990 to reﬂect the inclusion of compensation for pollution prevention efforts by salvors in the Salvage Convention. Debate in the CMI exhibited a sharp difference of opinion between those who wanted to exclude all pollution costs to third parties and those who were willing to admit expenditures on environmental measures consequent upon a general average act.39 In 1990, the latter approach largely prevailed in the amendment of Rule VI(a), which already admitted salvage awards as general average and was extended by a paragraph to include ‘any salvage remuneration in which the skill and efforts of the salvors in preventing or minimizing damage to the environment . . . [was] taken into account’. Thus expenditures on marine pollution prevention became admissible as general average so long as they were part of a salvage award. But compensation to salvors outside of a salvage award, or to anyone else, was excluded from general average. No further changes were made to Rule VI in the 1994 revision of the York-Antwerp Rules. However, with the elimination of salvage operations from general average adjustment in 2004,40 pollution prevention expenses reﬂected in salvage awards were also excluded. As a result, protection of the marine environment is now

37

This paragraph was added to Rule C in the 1994 revision of the Rules. Salvage Convention, supra note 30, Arts. 13 and 14. For a full discussion of the impact of this Convention see Chapter 10 by P. K. Mukherjee in this volume. 39 See the discussion of ‘The Environmental Issue’ in Hudson, supra note 1, at 52–55. 40 Discussed in the previous subsection. 38

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outside of the regime of general average as stated in Rule C paragraph 1, except for a few very limited exceptions. These exceptions were introduced in 1994 as part of the compromise package of amendments regarding pollution of the oceans. They reﬂect a deliberate distinction between pollution prevention, which may be associated with a general average act, and pollution response, which is not because it is not directed to the common safety of the voyage. They are found in Rule XI(d), which allows as general average ‘the cost of measures undertaken to prevent or minimize damage to the environment’ in three very speciﬁc situations: - as part of an operation for the common safety which, had a stranger to the voyage undertaken it, would have resulted in a salvage award, - as a condition for the distressed ship to enter, remain or depart from a port or place of refuge for the common safety of the voyage, and - when necessarily incurred during discharging, storing or reloading of cargo if the cost of these operations is admissible in general average. Each of these provisions slightly expands the scope of allowable expenditures in general average for the sound reason that the cost of pollution prevention featured in each situation is a dependant condition for the assistance or refuge that the ship requires and general average admits. But expenses for pollution prevention that are not for the common safety or not necessarily incident to a legitimate general average expenditure are not admissible. Further, these three exceptions to Rule C are very limited in extent. Only the cost of pollution prevention and mitigation is allowed as general average. Rule XI(d) does not include liabilities for pollution damage, clean up expenses, ﬁnes and other legal penalties for any incidents of marine pollution: they remain the responsibility of the polluter.41

Costs and Charges for Entering a Port of Refuge Finally, a ship seeking a place of refuge, in addition to having to pay possibly for salvor’s assistance and certain dependent environmental expenses, may also be faced with extra costs in sailing to and entering a safe port. Since the voyage is likely prolonged by the ship’s deviation to a place of refuge, it will consume extra fuel and stores and will incur greater wages for the master and crew than originally planned. So long as these expenses are part and parcel of sailing for refuge on account of a general average act, they may be added to the ship’s account of general average expenditures.42 Similarly, when the ship enters the place of refuge it will very likely be faced with an array of expenses for pilotage, wharfage and other charges ordinarily levied on vessels entering

41 42

See York-Antwerp Rules 2004, supra note 12, Rule XI(d)(iii). Ibid., Rule XI(a)(i).

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ports. Provided the ship enters the place of refuge as a result of an incident, such as an accident at sea or a sacriﬁce of equipment, which renders refuge necessary for the common safety of the voyage, payment of the costs of entering the port or place of safety are admissible as general average expenditures.43

Expenditures in Places of Refuge Repairs of Ship’s Sacriﬁces Once a ship has arrived safely, if damaged, in a place of refuge, the shipowner will usually undertake repairs and would, no doubt, like to claim the cost of them as general average expenditures. Ordinarily repairs to a ship are not allowed in general average on the principle that they are part of the shipowner’s costs of owning and running a ship in commercial trade. But repairs to the ship will be admitted in general average when they are required because of a general average sacriﬁce. Yet, permanent repairs will advantage the shipowner by the replacement of the old, sacriﬁced parts of the ship with new and more valuable equipment and materials. An allowance against such an advantage to one party to the voyage might be expected on the principle that the general average regime compensates only common loss. In fact Rule XIII establishes that no deduction in respect of new for old materials or parts will be made unless the ship is more than ﬁfteen years old. Sometimes the shipowner only effects temporary repairs at the place of refuge either because they are sufﬁcient to enable the ship to complete its voyage or because permanent repairs cannot be made there. If the temporary repairs are occasioned by a general average sacriﬁce, e.g., damage caused to the ship in extinguishing a ﬁre, or are made for the common safety of the voyage in the place of refuge, such as a danger of sinking while laying there, they will be admitted as general average expenditures without deductions44 because, in principle, they are an extra expense for the shipowner that does not add lasting value to the ship. On the same principle, the costs of temporary repairs to enable the ship to move to another place where permanent repairs can be made will also be allowed as general average expenditures.45

Running Costs while Undergoing Repairs While the ship lies in the place of refuge undergoing repairs, it will inevitably incur extra running costs, such as the consumption of additional fuel and stores,

43 44 45

Ibid., Rule X(a). Ibid., Rule XIV. Ibid., Rule X(a)(ii).

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along with additional wages and maintenance costs for the master and crew. It may also be necessary to move some or all of the cargo, fuel or ship’s stores in order to lighten the ship or to gain access to the area of damage. The ship will then incur added, unplanned costs of handling, unloading, storing and eventually reloading the affected goods. So long as these extra expenses were consequent upon repairs rendered necessary by a general average sacriﬁce or for the common safety, they would all have been admitted as general average expenditures. However, the 2004 revision of the York-Antwerp Rules has reduced the allowed expenditures by cutting out the wages and maintenance of the master and crew in the port of refuge, even though they are taken into account during the prolongation of the voyage to reach the port of refuge.46 Thus only the running costs of the ship itself plus any incidental cargo handling during the period of repairs are now admissible as general average.47

Accidents Inhibiting Safe Completion of the Voyage Sometimes a ship is in a port of loading or call or even in a place of refuge when it suffers accidental damage. An example might be a ﬁre on board that began from an unknown cause. Since no general average act was involved and assuming the common safety is not put at risk, the cost of repairing the damage along with the extra expenses incurred meanwhile for maintenance of the crew, running the ship and, possibly, moving the cargo would not be admissible as general average. However, if the ship cannot continue safely on its voyage without effecting at least temporary repairs, a claim in general average may be advanced. While the ship remains in port, it is true that the common safety is not imperilled and so no general average is incurred while lying there. But, by extension, if the common safety would be endangered should the voyage be resumed without repairs being made, some allowance for their cost as general average would seem appropriate, as indeed Rule XIV recognises. Yet, since admission of these expenditures as general average is an extension of the principles of the YorkAntwerp Rules – some call the situation artiﬁcial general average48 – they are only allowed in a limited way. The maximum recoverable claim is determined by subtracting from the estimated cost of permanent repairs at the port of refuge, the sum of the costs of temporary repairs actually made there and the permanent repairs subsequently carried out elsewhere.49 Since part of this limi-

46

Ibid., Rule XI(a)(i), discussed supra at note 42. Ibid., Rules X(b),(c) & XI(c). As will any damage done to the cargo, fuel or stores in the course of handling and moving them: Rule XII. 48 See W. Tetley, Marine Cargo Claims, 3rd edition (Montreal, Yvon Blais, 1988), at 729, and Buglass, supra note 1, at 198 and 253. 49 York-Antwerp Rules 2004, supra note 12, Rule XIV(b). See also Marida Ltd. v. 47

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tation on the amount allowed as general average was introduced in the 2004 revision of the Rules, experience has yet to show how it will affect the practice of general average adjustment, but it is anticipated it will curtail contributions for the cost of temporary repairs for the safe completion of the voyage. The Rules also admit as general average any extra expenditures for ship’s fuel and stores as well as cargo handling, if required, on account of repairs that ‘were necessary for the safe prosecution of the voyage’.50 On the same conditions, port charges incurred by the ship while it is detained for repairs are additionally allowed as general average.51 But the repairs must have been necessitated by some accident to the ship and not simply be required as a result of wear and tear discovered while it is in port en route,52 for that is a cost of running the vessel which is particular to the shipowner.

Substituted Expenses The cost of temporary repairs is, in essence, incurred in place of the probably larger expense of permanent repairs. In this sense, payment for temporary repairs is one example of a class of ‘substituted expenses’ allowed in general average by Rule F: Any additional expense incurred in place of another expense which would have been allowable as general average shall be deemed to be general average and so allowed without regard to the saving, if any, to other interests, but only up to the amount of the general average expense avoided.

Other examples of expenses incurred in substitution for the cost of repairs in a place of refuge would include payments to complete the voyage and to deliver the cargo by other means, such as towage of the disabled ship or transhipment of the cargo. But, as substituted actions, their additional expense may only be accounted against genuine general average expenditures that would otherwise have had to be incurred. Moreover, Rule F limits the substituted expenses allowable to the amount of general average expense avoided. However, no regard will be taken of savings that might accrue to other interests, such as a reduction in the shipowner’s cost of repairs. When the shipowner chooses to tranship and forward the cargo to its destination, rather than repair the ship and complete the voyage, the commonality of interest in the voyage is ended. In principle, then, the cargo owner is no longer

Oswal Steel (The Bijela), [1994] 2 Lloyd’s L. R. 1 (H.L.) and Lowndes and Rudolph, supra note 1, at 463–469. 50 York-Antwerp Rules 2004, supra note 12, Rules X(b), (c), XI(c)(i) and XII. Note that extra expenses for crew’s wages and maintenance are excluded. 51 Ibid., Rule XIV(c)(ii). 52 Ibid., Rule XI(c)(iii).

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liable to contribute in general average for any expenses incurred after the cargo has been separated from the ship. This might include not only the cost of forwarding the cargo but also the shipowner’s expense for the consumption of additional fuel and stores in the port of refuge while repairs to the ship are undertaken. In practice, shipowners became accustomed to demand the signature of cargo owners on a ‘non-separation’ agreement in return for forwarding the cargo independently to destination. The agreement typically directs that general average will be adjusted without regard to the separation of the cargo by treating the parties as nearly as possible the same as they would have been if the voyage had been completed. This practice is now also recognised by the York-Antwerp Rules in Rule G.53

OTHER REQUIREMENTS OF GENERAL AVERAGE The discussion of general average acts in Part II has foreshadowed the remaining three requirements for general average contributions, so only brief attention to each of them individually will now be paid.

Intentional and Reasonable Acts Recalling Rule A above, a sacriﬁce or expenditure will only be admitted as general average if it was intentionally and reasonably made. The loss must be voluntarily incurred for the common safety to become a common loss, i.e., general average. Thus damage done to a ship by bad weather during the voyage is an involuntary loss which the shipowner must bear as particular average, but if the master were to jettison deck cargo in order to stabilise the ship after it was weather damaged but still in peril, that would be voluntary loss made for the common safety and therefore would constitute general average. Rule III provides a similar example of a general average act consequent upon an involuntary loss. The Rule supposes a ship has caught ﬁre by accident: such involuntary damage is particular average for the shipowner’s account. But the cost of efforts to extinguish the ﬁre would be a general average expense when made intentionally for the common safety and, as Rule III provides, damage incidentally done to the ship or cargo by the water used to extinguish the ﬁre may additionally be made good as general average. As well as being done intentionally, the claimed general average act must also have been made reasonably. This part of Rule A is emphasised in the Rule Paramount, added in 1994, which states that ‘[i]n no case shall there be any

53

Ibid., Rule G(3) and (4).

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allowance for sacriﬁce or expenditure unless reasonably made or incurred’. This Rule is called Paramount because by the Rule of Interpretation54 it is given pre-eminence in the interpretation and application of all the other rules, whether they happen to include a criterion of reasonable conduct or not. Thus in the application of Rule III, mentioned above, the water damage allowed as general average only extends to the loss sustained in the course of reasonable efforts to extinguish the ﬁre on board. The shipowner still bears the duty to take care how the water is employed and to guard against preventable damage from its escape. Closing open hatches so as to stop water damage to unaffected cargo, if practicable, would be an example of the shipowner’s continuing general duty of care in carriage.55 Loss caused unreasonably is not allowed as general average because it results from the fault of one of the parties. As the Supreme Court of Canada has emphasised: . . . although in carrying out the general average act the master is acting in the interest of all concerned, he is representing the owner and in so doing, his overriding duty of care for the cargo is still paramount and loss or damage sustained by the cargo through breach of this duty is not “a general average loss” to which the Rules apply.56

Breach of duty by the shipowner will disallow a general average claim whether the fault was in the way the general average act was done, as in the example above of water damage in extinguishing a ﬁre, or, prior to that, in the incident giving rise to the need to act. For instance, a shipowner has no right to general average contributions for expenditures reasonably incurred to save the ship and cargo at sea when they were made necessary by a failure to exercise due diligence before the voyage to render the ship seaworthy.57 ‘[T]he law is . . . clear that a carrier is not entitled to recover from a shipper a contribution in general average where the general average situation was brought about by his own actionable fault’.58

54

Reproduced supra after note 12, the York-Antwerp Rules 2004. See, e.g., the Hague-Visby Rules, Art. III(2). International Convention for the Uniﬁcation of Certain Rules of Law Relating to Bills of Lading (Hague Rules), 25 August 1924, 120 L.N.T.S. 155 as amended by the Protocol to Amend the International Convention (etc.) (Visby Rules), 23 February 1968, U.K.T.S. 1977 No. 83. 56 The Oak Hill, supra note 27, at 1236. 57 As required by the Hague-Visby Rules, supra note 55, Art. III(1): see, e.g., Maxine Footwear Co. Ltd. v. Canadian Government Merchant Marine, [1974] A.C. 599 (P.C.). 58 St. Lawrence Construction v. Federal Commerce and Navigation Co., [1985] 1 F.C. 767 at 788 (F.C.A.). 55

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Made in Time of Peril A loss is only general average if it was caused in the act of warding off peril. As Rule A above indicates, a general average act must be an action in a time of peril to ship and cargo. The Rule does not limit the nature of the peril, so any kind of danger is relevant if it calls forth measures to preserve the common safety. Similarly Rule A does not address the eventuality of the peril. The word itself may suggest imminent danger but probably any substantial risk hanging over the voyage is sufﬁcient. In particular, several numbered rules, discussed above,59 admit as general average any expenditure made for the safe prosecution of the voyage beyond a place of refuge. These rules operate in a time of safety60 in anticipation that the ship will inevitably face peril as soon as it leaves the place of refuge if it is not repaired. However, loss suffered by an act to avert a peril is not general average if the danger was or should have been contemplated in advance by the shipowner and so fell within the shipowner’s exclusive duty of care in sending the ship on the voyage.61

For the Common Safety of the Voyage The essence of general average is that the loss is shared in common because it was caused by a sacriﬁce or expenditure that was, as Rule A states, ‘made or incurred for the common safety’. Thus the loss sustained by one or more parties to the voyage is general average if it was incurred for the preservation of the property of all. The success or failure of the act is not relevant to a claim for general average contributions: the attempt to preserve the property as a whole at risk on the voyage is what constitutes the loss as general average. Conversely, once the commonality of interests in the voyage is severed, no sacriﬁce or expenditure may be admitted as general average. When there is no longer any common safety at stake, there can be no general average. Thus, if a ship enters a port of refuge for repairs that necessitates discharging the cargo and the cargo owner takes delivery there, short of the intended destination, the voyage is terminated so the shipowner may not, in principle, claim a general average contribution for any subsequent expenditures. It is for this reason that

59 See the subsection, ‘Accidents Inhibiting Safe Completion of the Voyage’ supra after note 47. 60 In clear contradiction to Rule A’s requirement of peril, but with overriding effect in accordance with the Rule of Interpretation discussed supra after note 12, the YorkAntwerp Rules 2004. 61 Strang Steel & Co. v. A. Scott & Co. (1889) 14 A.C. 601; Kidd v. Thomson (1899), 26 O.A.R. 220. See also the discussion around fault of the claimant infra at note 65.

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non-separation agreements, mentioned above,62 are customarily demanded by shipowners. Although the features of a general average act have been discussed as four separate requirements, in fact they must all be present as interactive elements to justify the sacriﬁce or expenditure made. As a perilous situation develops the master may take several measures that are subsequently claimed by the shipowner to have been general average acts. Which of them were, so that general average contributions for the resulting losses may be adjusted, will depend upon close analysis of the circumstances in which the claimed general average acts were taken in order to determine the combination of all the requirements of general average were present. The Canadian case of Northland Navigation Co. Ltd. v. Patterson Boiler Works Ltd.63 presented an instructive set of circumstances. A tug was towing a barge loaded with steel buoys. The tug, the barge and the cargo belonged to different owners. When the tug ran into difﬁculties in heavy seas, the barge was cast adrift and went aground. All subsequent attempts to reﬂoat the barge were ineffective so it was abandoned, but later the cargo of steel buoys was safely removed from it. The barge owner then claimed a general average contribution from the cargo owner for all the expended efforts to rescue barge and cargo, but was only partially successful. The court accepted that the act of casting the barge adrift was a general average sacriﬁce in the face of peril for the common safety of all three interests in the voyage, i.e., the tug, the barge and the cargo. It also admitted, as general average expenditures, the costs incurred in the efforts to save the barge with the cargo onboard. The fact that the barge was not rescued shows that actions taken do not have to be successful to be admitted as general average expenses provided they were intentionally committed for the common safety of the parties’ interests when imperilled. However, the court also noted that by the time the efforts to save the barge were mounted there was no longer a ‘common tripartite peril’64 because the tug had already cast the barge adrift, so the contributors to these expenditures were only the barge owner and the cargo owner. The court further held that, once the barge had been abandoned, the work of rescuing the cargo was not done for the common safety of the barge and cargo owners together, but was a particular expense for the beneﬁt, and therefore the cost, of the cargo owner alone.

62 63 64

Supra in text at note 53. Northland Navigation Co. Ltd. v. Patterson Boiler Works Ltd. [1982] 2 F.C. 59. Ibid., at 66.

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GENERAL AVERAGE ADJUSTMENT The process of adjustment of a general average claim is a very lengthy and technical task that generally demands the expertise of a professional average adjuster. It also involves the giving of a general average bond between the interested parties as a guarantee of payment of the contributions eventually assessed. The rules and practice of general average adjustment obviously control the ﬁnancial outcome of a particular general average claim but they do not in general throw much light on the circumstances in which a ship in need of assistance or a place of refuge may expect to share loss as general average. Only the bare outline of the rules of adjustment that touch on the general issue will be addressed. Not surprisingly, the burden of proof that a loss is allowable as general average is, by Rule E, placed on the claimant. More surprisingly, by Rule D, a right to a general average contribution is not affected by the fact that the event which gave rise to the general average act may have been due to the fault of the claimant. At ﬁrst glance, this rule seems counter intuitive: surely the wrongdoer may not expect to share the loss caused by his/her own fault. In fact, all that Rule D does is to ensure the process of general average adjustment proceeds without regard to questions of right or wrong doing. These matters are separated from the general average claim, but, as Rule D continues to explain, the general average adjustment will be made without prejudice to any other claims about liability, which will be resolved, if necessary, by the ordinary process of litigation.65 A large part of the process of general average adjustment is the assessment of losses and contributory values. Rule G establishes the principle that general average will be adjusted ‘upon the basis of values at the time and place when and where the adventure ends’, or, in other words, where the commonality of interest in the voyage is terminated. The calculation of cargo loss is made by reference to its net sound value at that place.66 The value of loss to the ship is the actual reasonable cost of repairing or replacing the damaged parts.67 The contributory values of the parties are like65 In English and Canadian practice, if the general average situation was caused by a fault of the master that is excusable in law, the shipowner continues to be entitled to general average contributions: see Louis Dreyfus & Co. v. Tempus Shipping Co., [1931] A.C. 726 and Drew Brown Ltd. v. The Orient Trader, [1974] S.C.R. 1286. In US law, even excusable fault disentitles the shipowner’s claim in general average. For this reason, shipowners trading to the United States typically include a New Jason Clause in their terms of carriage to restore their rights in general average: see The Jason, 225 U.S. 32 (1912) and Isbrandtsen Co., Inc. v. Federal Ins. Co., 113 F.Supp. 357 (1952), aff’d 205 F.2d 679 (1953). 66 York-Antwerp Rules 2004, supra note 12, Rule XVI. 67 Ibid., Rule XVIII.

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wise assessed where the common voyage ended, and thus they are calculated on the net value of the property preserved.68 It is the remaining value of the ship and cargo, not their original or whole value, which matters, subject to one proviso. The value of any sacriﬁces must be added back onto the values of the preserved property of the parties who suffered them in order to maintain the integrity of the calculation of proportional contributions. One important consequence of adjusting general average by reference to the property preserved is that the greater the physical loss and damage to the cargo, whether by accident or sacriﬁce, the lesser will be the general average contributions of the cargo owner. In the extreme case of a total loss of ship and cargo, no beneﬁt is received from any general average acts that may have been made, so no contributions are due. In the absence of liability for the loss being afﬁxed to one party on account of fault, each party will have to bear the whole of their own loss individually.69 Finally, local law, as opposed to the York-Antwerp Rules, may place a limit on the amount of contributions to be made. In common law countries at least, a general average contribution may not exceed the contributory value of the property on which it is assessed. For instance, if large general average expenditures are incurred by the ship but little of the cargo is saved, the contribution assessed against the cargo owner may be greater than the value of the preserved cargo. Then the cargo owner would be expected to make a contribution equal to the value of the preserved cargo, i.e., to contribute 100 percent of its remaining property interest, while the shipowner would have to absorb the excess portion of the contribution assessed but not paid by the cargo owner as well as its own share of the apportioned common loss.70

CONCLUSION: GENERAL AVERAGE COSTS OF REFUGE Ships in peril may take a variety of evasive actions. Depending on the nature and imminence of the danger, the master may, for instance, sacriﬁce part of the ship or the cargo, or call for a tow to safety, or run the vessel into a place of refuge, or engage rescue services, or order repairs to the ship in a port of refuge, or ofﬂoad and even tranship part or all of the cargo. The authority to commit some of these measures for the common safety of the voyage may depend in part upon the laws and discretionary powers of the coastal state and the port of refuge.

68

Ibid., Rule XVII. Fletcher v. Alexander (1868), L.R. 3 C.P. 375, at 382. 70 See, e.g., Ultramar Canada Inc. v. Mutual Marine Ofﬁce Inc. (1994), 82 F.T.R. 1 (F.C.C.). 69

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In addition to the provision of assistance and refuge, public authorities have justiﬁable concerns about the risks and dangers they may invite when they permit crippled ships to enter their ports and waterways. Debate continues in IMO and elsewhere about the extent to which coastal, port and ﬂag states bear responsibilities towards ships in need of assistance. Much concern centres on the extent of a state’s discretionary powers to exclude or condition the admission in national waters of ships that carry toxic or polluting cargoes, or suspected terrorist persons and materiel, or present other dangers or security risks to the coast, the port or the public. Whatever conclusion may be reached in the on-going international debate about the rights and duties of coastal and port states towards ships in peril, one can well imagine that the terms of assistance or admission to refuge will involve new requirements and restrictions. New charges may be imposed, such as pollution prevention levies on ships and cargoes,71 and ﬁnancial security bonds may be demanded against compensation for pollution damage and cleanup costs.72 A ship’s movements may be limited by requiring it to moor in an isolated anchorage, which necessitates extra running costs and lighterage expenses. On entering the place of refuge, precautionary requirements may be speciﬁcally imposed on the ship,73 such as putting spill control booms in place around the ship or hiring standby vessels, equipment and personnel. The local authorities may even go so far as to intervene in the situation themselves,74 for instance by towing a disabled ship away and charging the cost of the required service. Without doubt, shipowners will seek to pass on these extra charges to their customers, the cargo owners. One way they may try to do so is by framing their claims as general average. Will their claims be allowed? The general average regime grew up to take account of the realities of a ship in peril at sea. Preservation of the safety of all parties to the voyage is the motivating principle behind the system of mutual contributions to compensate individual interests for their sacriﬁces and expenditures. Up to 2004 the class of expenditures allowed as general average had steadily expanded. Purchases of replacements for sacriﬁced parts and supplies, and fees for assistance are obvious examples of general average acts. But the admission between 1990 and 2004 of salvage awards that take into account the costs of efforts to prevent or mitigate damage to the marine environment more than stretched the general

71 Along the lines of the Canadian Ship-source Oil Pollution Fund under the Marine Liability Act, S.C. 2001, c. 6, Part 6. 72 See the Spanish Royal Decree considered by Rosa Mari Darbra Roman in Chapter 6 and the Belgian legislation discussed by Eric Van Hooydonk in Chapter 15. 73 E.g., the United Kingdom Marine Safety Act 2003, (UK), 2003, c. 16, authorises government ofﬁcials to give such directions as are necessary and expedient. 74 E.g., the UK Marine Safety Act, ibid., allows the government to intervene with a right of cost recovery for its actions.

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average requirement that qualifying acts must be taken for the common safety of the interests in the voyage and not for the beneﬁt of strangers. Then again, the payment of user fees to public authorities, such as port corporations, companies of pilots or the coast guard, for the right to enter or remain in a port or place of refuge may be reasonable expenses but are not strictly necessary to preserve the ship and the cargo from peril. The kinds of new costs and charges for assistance and refuge concerning marine pollution protection, outlined above, also would not qualify as expenditures made for the common safety of the voyage. Their purpose is to protect the safety and security of coastal property and populations. So these expenses would not readily ﬁt within the class of expenditures allowable as general average, except in one respect. Rule XI(d) of the York-Antwerp Rules does admit ‘the cost of measures undertaken to prevent or minimize damage to the environment’75 in a very limited way. Such costs are allowable general average expenditures if they were imposed as a condition of entering or remaining in a port or place of refuge. The scope of this rule may be sufﬁcient to allow as general average anti-pollution levies and some of the costs associated with precautionary measures, whether required to be made by the ship or imposed by government intervention and charged to the shipowner. But expenditures on anything more than pollution prevention measures are explicitly excluded by the Rules.76 Thus bonds demanded of the ship to secure the payment of cleanup costs in the event of pollution or compensation payable for damage done to marine resources would not be admissible as general average. Whether other charges not directly related to environmental protection might be allowed as general average also remains uncertain. Perhaps ﬂexibility may be found interstitially in the York-Antwerp Rules to include them by analogy to existing public user fees admitted under Rules X(a) and XIV(c)(ii),77 but otherwise new costs and expenses incurred by ships in seeking refuge will not be recoverable as general average.

75

York-Antwerp Rules 2004, supra note 12, Rule XI(d), discussed supra at note 41. Ibid., Rules C and XI(d)(iii), discussed in the subsection on ‘Pollution costs’ supra at notes 36 fwd. 77 Discussed supra at notes 43 and 51 respectively. 76

PART III NATIONAL APPROACHES

Chapter 14 Places of Refuge in a Federal Jurisdiction – The Australian Experience Sam Bateman and Angela Shairp* INTRODUCTION This chapter addresses the management of places of refuge in a federal system of government where the states and territories have jurisdiction over internal waters and some of the territorial sea. The issue has been of concern in Australia since the ‘Kirki’ incident off the West Australian coast in 1991 and the ‘Iron Baron’ grounding off northern Tasmania in 1995. There is no single authority in Australia responsible for marine safety, and these situations required the Commonwealth government to negotiate with state governments regarding the location of a possible place of refuge for ships in need of assistance. While the ‘Kirki’ and ‘Iron Baron’ incidents, along with more recent ones, have highlighted deﬁciencies in existing arrangements, there has been reluctance in Australia to pre-designate places of refuge. Each situation is regarded

* The authors are grateful for the advice of Mr Paul Nelson of the Australian Maritime Safety Authority, Captain Arthur Diack of Maritime Safety Queensland and Mr Ian Hoskison of United Salvage in developing this paper.

375 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 375–413. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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as unique, requiring a political decision by the Commonwealth government and/or the relevant state or territory government. In view of special sensitivities attached to the Great Barrier Reef, Queensland has led the way with developing appropriate guidelines and legislation. The chapter concludes that despite agreement in 2002 on the National Maritime Place of Refuge Risk Assessment Guidelines (see Annex 1 to this chapter), there is still some uncertainty between the various state and Commonwealth agencies and port authorities over who has power to grant a place of refuge to a vessel in distress.

Geographical Factors Australia’s geography, particularly the signiﬁcant distances involved in reaching offshore territories and remote areas of the mainland and the difﬁculties involved in providing assistance, pose great challenges for managing marine casualties. However, Australia’s relative isolation also has some beneﬁts in reducing the incidence of requests for places of refuge. Unlike many maritime nations, passing trafﬁc that does not call at an Australian port is minimal. The coastline of mainland Australia is nearly 36,000 kilometres in length.1 The exclusive economic zone (EEZ) around Australia and the offshore territories measures 8.15 million square kilometres, nearly 20 per cent larger than the Australian mainland.2 If the waters contiguous to the Australian Antarctic Territory (AAT) are added, the EEZ is approximately twice as large as the continental land mass. The distances to some of Australia’s offshore territories are considerable. Heard and McDonald Islands are over 2,400 nautical miles (nm) southwest of the mainland. Christmas and Cocos Islands are over 1,000 nm out in the Indian Ocean, and Ashmore and Cartier Islands are some 500 nm west of Darwin.

Federalism in Australia Australia has a federal system of government with three levels of government: federal (Commonwealth),3 state and local. Australia became a Federation in 1901 when the six previously separate British colonies joined together to form

1 The total length of Australia’s coastline is 59,736 kilometres if the coastline of islands is taken into account, Geoscience Australia, “Coastline Lengths”, <www.auslig.gov.au/facts/dimensions/coastlin.htm>, 15 January 2004. 2 Geoscience Australia, “Australia’s Oceans and Seas”, <www.ga.gov.au/education/ facts/dimensions/oceans.jsp>, 15 January 2004. 3 The current Howard government has decreed that the Commonwealth government should be known as the Australian government.

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the Commonwealth of Australia. There are still the six Australian states: New South Wales (NSW), Queensland, South Australia (SA), Tasmania, Victoria and Western Australia (WA), and two territories: the Australian Capital Territory (ACT) and the Northern Territory (NT). The two territories now have a substantial degree of autonomy akin to the states but with a chief minister rather than a state premier. The territories have no separate identity under the Australian constitution. The NT has a substantial coastline, but the ACT is landlocked. There is also the somewhat anachronistic, small area of Jervis Bay on the south coast of NSW that is a separate mainland territory of the Commonwealth of Australia, completely surrounded by NSW waters and land. The Commonwealth acquired the Jervis Bay Territory from NSW in 1915 so that the national seat of government in Canberra would have access to the sea, but in 1992 much of the land territory was separately designated as the Jervis Bay National Park.4 However, Commonwealth marine jurisdiction only extends to a part of the southern area of the Bay (designated as ‘naval waters’), and a large area of the rest of the Bay has been declared a state marine park.5 Ironically, Jervis Bay is an attractive, potential place of refuge on the south coast of NSW, but when it was considered as such in February 1992 for the damaged woodchip carrier ‘Daishowa Maru’, an initial approval to use the bay as a place of refuge was subsequently withdrawn for environmental reasons.6 Under the Offshore Constitutional Settlement (OCS), the state governments (and the NT) have responsibility for internal waters and the ﬁrst three nautical miles of territorial sea (‘waters under the control of the States’).7 Local

4 The Territory is now administered through the federal Department of Transport and Regional Services (DOTARS), “The Jervis Bay Territory”, <www.dotars.gov.au/terr/ jervis/govt.aspx>, 5 July 2005. 5 Ibid., there are some shortcomings relating to the maritime regulations covering the Jervis Bay Territory but these are currently being addressed. 6 D. Baird and R. Lipscombe, “Safe Haven Policy and Practice in Australia”, Paper presented to AMSA/AAPSA Conference on Safe Havens and Salvage, <www.amsa.gov. au/amsa/haven/Baird.pdf>, 19 February 2002. ‘Daishowa Maru’ – a 59,296 dwt Japanese ﬂagged bulk carrier, which was to load a cargo of woodchips in Twofold Bay (NSW), dragged anchor and ran aground on 11 February 1992. The ship was reﬂoated two days later. An underwater inspection revealed extensive damage to the hull plating, with the ship’s propeller bent, half of the rudder missing and badly damaged steering gear. ‘Daishowa Maru’ was refused entry to berth in Twofold Bay and instructed to leave the port limits due to the potential for further risks. A tentative proposal to take the ship into naval waters in Jervis Bay was agreed, but the NSW government later denied entry, and the ‘Daishowa Maru’ was then towed to Japan for repairs. 7 Brian R. Opeskin, “The Law of the Sea”, in: S. Blay, R. Piotrowicz and B. M. Tsamenyi, eds., Public International Law: an Australian Perspective (Oxford, Oxford University Press, 1997), 352.

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government generally has responsibility for coastal development, and control over sources of land-based marine pollution of Australia’s marine environment.8 Management of Australia’s offshore areas and the land-sea interface is a complex web of Commonwealth, state and territory and local government control, ownership and title. Powers are divided between the Commonwealth and state governments as prescribed in the Australian constitution.9 Speciﬁc powers are allocated to the Commonwealth while residual powers remain with the states. Key sections of the constitution that specify relevant Commonwealth powers include: s.51 s.51 s.51 s.61 s.98

(x) ‘ﬁsheries in Australian waters beyond territorial limits’ (i) ‘trade and commerce’ (xxix) ‘external affairs’ ‘executive power of the Commonwealth’ ‘navigation and shipping’ (except intrastate)

The power vested in the Commonwealth government for ‘external affairs’ includes the authority to negotiate treaties with other countries and to make laws giving effect to the treaties and other international obligations.10 Where there is conﬂict between such a treaty and state law, the law of the Commonwealth embodying the international treaty prevails. This results in what is referred to as the external affairs power of the Commonwealth. The Commonwealth government is the responsible party in any international treaty involving Australia. The practical effect of this is that the Commonwealth government usually has the power to do what it likes, although in practice, it may choose not to do so. Its powers are expansive in offshore areas due to the numerous ocean-related treaties, including the 1982 United Nations Convention on the Law of the Sea (LOS Convention) itself.11 Situations where the Commonwealth may choose not to exercise its powers include where the exercise of such powers could lead to demands by the states for additional funding, or there could be signiﬁcant political fall-out through

8 Major sources of land-based marine pollution in Australia include sewage, industrial waste, storm water and agricultural run-off, much of which is regulated by local government although in accordance with relevant state or territory legislation. For a general description of land-based marine pollution regulation in Australia, see Z. Lipman and G. Bates, Pollution Law in Australia (Chatswood NSW, LexisNexis Butterworths, 2002), Chapter 9, 348–381. 9 For a discussion of Australia’s constitutional framework for maritime jurisdiction, see Donald R. Rothwell, and Marcus Haward, “Federal and International Perspectives on Australia’s Maritime Claims”, 20 Marine Policy, 1996, especially 32–40. 10 Rosalie Balkin, “International Law and Domestic Law”, in: Blay, Piotrowicz and Tsamenyi, supra note 7, 140. 11 Rothwell and Haward, supra note 9, 29.

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perceptions of a ‘heavy-handed’ Commonwealth. This might well be the case if the Commonwealth government wanted to compel a state government to grant refuge to a stricken vessel. A request for a place of refuge invariably leads to some political manoeuvring between these two levels of government.

The Offshore Constitutional Settlement12 In the early 1970s, due to fears mainly that Queensland would permit offshore petroleum exploration in the Great Barrier Reef, the Commonwealth asserted sovereignty over the then three nautical mile territorial sea under the Seas and Submerged Lands Act 1973.13 This assertion was challenged by the states in the High Court, which subsequently upheld the Commonwealth’s position in the Seas and Submerged Lands case in 1975.14 In this case, the High Court afﬁrmed the Commonwealth’s external affairs’ power where the subject of the legislation was physically external to Australia and the legislation was giving effect to an international treaty. The Commonwealth and the states subsequently came to a series of arrangements, collectively known as the Offshore Constitutional Settlement (OCS), to give the states a greater legal and administrative role in offshore areas. The OCS gave states and territories title to an area called ‘coastal waters’ consisting of all waters landward of the three nautical mile territorial sea limit, but not including internal waters that were already within the limits of a state (as deﬁned in letters patent at the time of Federation).15 The OCS also provided that: – in the event of the extension of Australia’s territorial sea to 12 nm (as subsequently occurred in 1990), the limit of state waters would remain at three nm; – co-operative arrangements could be entered into for the management of resources offshore, such as ﬁsheries and petroleum;16 and

12 This description of the Offshore Constitutional Settlement is largely drawn from: Commonwealth of Australia, Australia’s Oceans Policy, Vol. 1, Appendix 2 (Canberra, Environment Australia, 1998), 41–42. See also, Rothwell and Haward, supra note 9, 29 and Brian R. Opeskin and Donald R. Rothwell, “Australia’s Territorial Sea: International and Federal Implications of its Extension to 12 miles”, 22 Ocean Development and International Law, 1991, 395. 13 Opeskin, supra note 7, 351. 14 The State of New South Wales v. The Commonwealth of Australia [1975] 135 CLR 337. 15 R. D. Lumb, “Australian Coastal Jurisdiction”, in: K. W. Ryan, ed., International Law in Australia, 2nd ed. (Sydney, Law Book Co., 1984), 374–375. 16 Examples of such arrangements are those entered into under the Fisheries

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– the states could legislate in relation to speciﬁed activities (including ﬁsheries, shipping facilities and works, and subterranean mining) in an ‘adjacent area’ beyond their coastal waters.

National Oil Spill Contingency Plan The issue of safe havens was addressed during the 1993 review of the National Plan to Combat Pollution of the Sea by Oil and Other Noxious and Hazardous Substances (the National Plan). This is a non-binding agreement between the Commonwealth, state/NT governments and industry to provide a strategy for dealing with incidents involving a serious threat of marine pollution. The National Plan covers Australian territorial seas, including offshore islands and territories, the EEZ and the high seas where an oil spill has the potential to impact on Australian interests. If a spill is in coastal waters (to the three nautical mile limit), the state/NT authority is responsible through the National Plan State Committee, with assistance from the Australian Maritime Safety Authority (AMSA) if necessary. If beyond the three nm limit, the Commonwealth, through AMSA, is the responsible authority, except where oil is likely to come ashore. At the 1993 review of the National Plan, the question of whether safe havens should be pre-designated, or located on a case-by-case basis, was addressed.17 Two points of view emerged. On the one hand, industry representatives wished to see pre-designated ports as they believed that if a casualty occurred, then there would be no delay to the salvors as to which area or port they could tow the stricken vessel. This was supported from an environmental viewpoint because contingency plans could be put in place to combat any pollution risk. On the other hand, some state and territory governments were opposed to pre-designated ports as they said this would lead to lengthy discussions and negotiations with all the various interested parties, including those who would have no ‘immediate appreciation of a critical marine situation’.18 They also

Management Act 1991 to enable a ﬁshery both within and outside state coastal waters to be managed by one authority (state or Commonwealth) and under one law (state or Commonwealth). Section 71, Fisheries Management Act 1991, Reprint 3, reprinted on 16 November 2004 (with amendments up to Act No. 29, 2004). 17 Australian Maritime Safety Authority, Review of the National Plan to Combat Pollution of the Sea by Oil, Report of High Level Working Party (Canberra, AMSA, 1993), 97–99. 18 Baird and Lipscombe, supra note 6. This is an apparent reference to those, including politicians, who are driven by environmental concerns but lack the knowledge and experience to appreciate marine safety concerns. This is in line with a recent comment by the IMO Secretary-General that environmental damage hits headlines and arouses

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believed that discussions would lead to access being denied by some ports and a great deal of debate going on for something that might never happen. In their opinion, the chances of receiving access to an area or port would be far greater at the time of an incident as pollution prevention measures and plans could be put in place before the arrival of the vessel. The Australian salvage industry agrees with this opinion.19

CASE STUDIES ‘Kirki’ On 21 July 1991, the 87,000 DWT Greek registered oil tanker ‘Kirki’, carrying a cargo of 82,660 tonnes of light crude oil, was 22 miles off the Western Australian coast when its bow broke away. Fire broke out on ﬁve separate occasions, each time being extinguished by the sea. Crew members were evacuated by helicopter and the ‘Kirki’ was towed offshore to await assessment of the situation and decisions on the future course of action. The Western Australia government refused permission to allow the vessel to take refuge off Fremantle, the nearest port, in the lee of Rottnest Island, as there was not enough depth and it is an environmentally sensitive area. Four days later on the 25 July and for the next 14 days, the ‘Kirki’ was towed to an area northwest of Dampier to transfer the remaining cargo in the lee of Monte Bello Island, a place of refuge agreed by the federal government but rejected by the state government. The transfer of cargo was ﬁnally achieved on 19 August and the vessel towed to Singapore for repairs. At the subsequent review of the incident, the need to identify suitable places of refuge was noted by the Chairman of the WA State Oil Pollution Committee.20 Dividing responsibility between state and federal authorities resulted in a lack of ﬁrm direction in respect of the place of refuge issue during the ‘Kirki’ incident.21 Signiﬁcant outcomes from the ‘Kirki’ incident included the 1993 review of the National Plan and a Commonwealth government inquiry into the incidence of unsafe ships on the Australian coast.22 indignation ‘to a far greater extent than does the loss of seafarers’ lives’. Sandra Speares, “Pollution ‘Rouses Public More Than Loss of Life’”, Lloyd’s List online, <www.lloydslist.com/>,18 October 2004. 19 As advised by Mr Ian Hoskison of United Salvage, 20 January 2005. 20 Baird and Lipscombe, supra note 6, 6. 21 D. Maddern and S. Knight, “Refuge for Ships in Distress: International Developments and the Australian Position”, 17 Maritime Law Association of Australia and New Zealand Journal, 2003, 101. 22 Commonwealth of Australia, House of Representatives, Standing Committee on

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‘Iron Baron’ In 1995 the ‘Iron Baron’, a 37,557 DWT bulk carrier on charter to Broken Hill Proprietary (BHP) Ltd., grounded on Hebe Reef on the north coast of Tasmania causing extensive damage to the vessel’s bottom plating.23 This resulted in approximately 325 tonnes of heavy fuel oil and 53 tonnes of diesel escaping and polluting areas of coastline. The vessel was reﬂoated and permission sought from the Port of Launceston Authority for entry into port to discharge the remaining cargo. This was refused on the basis of insufﬁcient information about the ship’s structural condition, possible pollution and navigational threats if the vessel were to sink and block the port entrance, and uncertainties over the insurance available.24 It was then decided by the owners, over the objections of the salvors, that the only other solution was to scuttle the vessel in deep water offshore. The main factors in the decision to scuttle the vessel were its dangerous condition as well as the uncertainty regarding further pollution and the inability to secure insurance. Neither the state government nor BHP, the vessel owners, could provide the port with the unlimited indemnity required.25 The salvor’s and the insurer’s solution was to temporarily repair the vessel offshore and then tow it to Singapore for repair, but this was rejected by the owners.26 Prior to this incident much discussion had taken place at the State Marine Pollution Committee level in Tasmania on what to do about safe havens in Tasmanian waters, but no decisions had been reached. Tasmanian ports would not commit themselves to being places of refuge, and it was felt that adverse public opinion would result if speciﬁc areas were designated for this purpose. After the ‘Iron Baron’ incident, the question of safe havens was again debated with one practical outcome being the decision to adopt, in modiﬁed form, the Queensland Guidelines.27

Transport, Communications and Infrastructure, Ships of Shame (Canberra, Australian Government Publishing Service, 1992) (hereafter Ships of Shame), <www.aph.gov.au/ house/committee/trs/shipsafety/contents.htm>, 17 May 2005. 23 For a full report on this incident, see Australian Government, Investigation Report No. 83 – Iron Baron (Canberra, Australian Transport Safety Bureau, 1995), <www.atsb. gov.au/marine/incident/incident_detail.cfm?ID=83>, 17 May 2005. 24 Charles Black, Port of Launceston Authority, “Safe Havens Policy and Practice in Tasmania”, Paper presented to AMSA/AAPSA Conference on Safe Havens and Salvage, Sydney, 19–20 February 2002, <www.amsa.gov.au/about%5Famsa/corporate%5Finformation/amsa%5Fspeeches/safe%5Fhaven%5Fand%5Fsalvage%5Fconference/index.asp>, 17 May 2005. 25 Discussion with Mr Ian Hoskison, 20 January 2005. 26 Ibid. 27 Black, supra note 24, 1.

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Following the incident, the Commonwealth Minister for Transport announced an investigation to assess and review the response to the ‘Iron Baron’ incident under the National Plan arrangements. The Review Group was asked to review, among other things, the issues of safe havens and their implications, and the interaction between BHP, the salvor and government in relation to the response to the incident and the ﬁnal decision to scuttle the vessel. They were also asked to provide recommendations for improvements and initiatives based on the lessons learned from the incident. The Response to the Iron Baron Oil Spill, Report of the Review Group was published in January 1996, and thirty-six recommendations were made, including two in respect of salvage.28 The issue of places of refuge was discussed during the Review. Although no recommendations were made, ﬁve ﬁndings were recorded. These included recognition of the importance of the issue, the necessity that all parties have a thorough understanding of the issue, and that the decision to grant a safe haven is made locally by those with local knowledge. It was also noted that a request is likely to be inﬂuenced by environmental and political interests, and it is accordingly essential that government and environmental agencies are well briefed on the issues. Findings 109 and 110 were particularly relevant. These state: ‘In some circumstances, failure to provide a safe haven may ultimately result in far greater environmental damage than would the provision of shelter’ and that ‘The most appropriate forum for the decision on whether or not a ship should be provided a safe haven is the responsible port or marine authority.’29

‘Eurydice’ On 14 February 2004, the Cypriot-ﬂag oil tanker, ‘Eurydice’ arrived off Sydney with a cargo of about 85,000 tonnes of light crude oil. An oily sheen was visible in the vessel’s wake, and the vessel was not permitted to enter Sydney Harbour while the source of the sheen was investigated. The vessel was sent 15 miles out to sea by the Sydney Ports Corporation so that it remained outside the territorial sea and in an area where the Commonwealth had responsibility for the protection of the marine environment. An initial investigation by divers revealed a 150 mm long hairline crack in the bottom section of a cargo tank through which oil was seeping. Over the next few days, various repair options were investigated, along with possible ship-to-ship transfer of cargo and alternative discharge locations. At no time was the ‘Eurydice’ deemed to be in distress, but Sydney Ports, as the port

28 Australian Government, The Response to the Iron Baron Oil Spill, Report of the Review Group (Canberra, AMSA, 21 December 1995). 29 Ibid., Findings 109 and 110.

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operator, was concerned to know that the ship was sound enough to transit Sydney Harbour without presenting a navigational hazard and that it would not leak oil while transiting. However, the issues involved were much the same as if the vessel had been one formally seeking refuge. Negotiations to resolve the situation were lengthy, complex and time-consuming, largely due to the number of stakeholders involved. A major concern of Sydney Ports was the risk of voiding its port liability insurance policy if the vessel was allowed to enter port. The ‘Eurydice’ eventually entered Sydney Harbour on 20 February after the crack had been temporarily repaired and all concerned were happy that no seepage was occurring. The whole incident was indicative of the problems likely to be encountered in a federal jurisdiction with reaching agreement on whether or not a distressed vessel should be granted refuge.

NATIONAL GUIDELINES The Queensland Model The Queensland Safe Havens Guidelines were published in 1994 and updated in 1999.30 These have become a model on which other states have based similar guidelines. They describe the criteria to be used when assessing requests for a place of refuge within ‘Prescribed Waters’ which are: • • • • •

Queensland coastal waters Waters of the Australian territorial sea Waters of the Great Barrier Reef World Heritage Area Waters of Australia’s EEZ The high seas where an incident has the potential to affect Australia’s interests31

The Guidelines have objectives as follows (in order of priority): • Safeguard the health and safety of the ship’s crews and others within the immediate area of an incident by outlining an agreed and established set of criteria for evaluating requests for safe haven within the prescribed area of the guidelines. 30

John Watkinson, “Queensland Safe Haven Guidelines”, Paper presented to AMSA/AAPSA Conference on Safe Havens and Salvage, Sydney, 19–20 February 2002, <www.amsa.gov.au/about%5Famsa/corporate%5Finformation/amsa%5Fspeeches/saf% 5Fhavens%5Fand%5Fsalvage%5Fconference/index.asp>, 17 May 2005. 31 Ibid., 1–2.

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• Protect the environmental, economic and amenity values of areas within the prescribed area of the guidelines by clearly deﬁning the procedures to be used when assessing the impact of granting requests for safe haven within the ‘Prescribed Area’. • Preserve the safety of the vessel and its cargo by providing a mechanism for the timely and well-informed assessment of all requests for safe haven within the ‘Prescribed Area’. Requests for a safe haven are considered on a case-by-case basis in accordance with the criteria described above. This is done in consultation with Maritime Safety Queensland, the Regional Harbour Master and AMSA. The views of other affected state and federal representatives are also taken into account, e.g. port authorities, Queensland Environmental Protection Agency, and the Great Barrier Reef Marine Park Authority (GBRMPA).

National Risk Assessment Guidelines The National Maritime Place of Refuge Risk Assessment Guidelines were developed by the National Plan Management Committee and endorsed by the Australian Transport Council in May 2003. A copy of the Guidelines is attached as an annex to this chapter. They apply to any maritime incident where a state or territory government and/or the Commonwealth government need to consider a request for a place of refuge within internal waters, the territorial sea or the EEZ. The Guidelines are voluntary and allow for case-by-case analysis and application. They reﬂect the balance of interests between a ship in distress and Australia’s national interest. The Guidelines state that places of refuge in Australian waters are determined on a case-by-case basis and are not pre-designated. This approach is premised on the basis that a place of refuge is not a ﬁxed location but depends on the characteristics of the vessel, the facts of the incident and prevailing environmental conditions, and the likely consequences. Commonwealth or state/NT agencies are enjoined to explore the option of continuing to respond to a maritime casualty at sea rather than automatically granting approval to access a place of refuge. As there is no international obligation at present for a country to provide a place of refuge for vessels in distress, state/NT authorities in Australia are under no obligation to grant a request. However, in refusing a request, a Commonwealth or state/NT agency should give consideration to alternative arrangements to assist a marine casualty. Under the Guidelines: • Requests for a place of refuge in a port or within the three nm coastal waters will be the responsibility of the relevant state/NT;

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• Requests for a place of refuge in a port of an external territory, the coastal waters of an external territory or waters outside the three nm of a state/NT will be the responsibility of AMSA; or • Requests for a place of refuge in the Great Barrier Reef Marine Park outside of coastal waters will be the responsibility of AMSA in consultation with Maritime Safety Queensland and GBRMPA.32 The Protection of the Sea (Powers of Intervention) Act 198133 provides the Commonwealth, through AMSA, with the authority to direct a ship involved in a maritime casualty falling within the scope of the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969,34 or a ship in the territorial sea or sea on the landward side of the territorial sea not within the limits of a state/territory and internal waters, to enter a particular port or sheltered area irrespective of the consent of the relevant port authority and/or state/NT government.35 The position in internal waters (i.e., ports and harbours) is a matter for state/NT legislation in accordance with Australia’s domestic law. Most Australian states have speciﬁc legislation that deals with intervention powers.36 The Commonwealth’s jurisdiction extends to some of Jervis Bay and the offshore territories.37 The most signiﬁcant and controversial power is the power to move the ship to another place. It is understood here that the Ofﬁce of International Law, Commonwealth Attorney-General’s Department considers that this power of the Commonwealth extends to moving the ship to a place of refuge even against the wishes of the port authority or state government concerned.38 However, it is not clear whether this constitutional advice accords with that received by state marine authorities.

32

National Maritime Place of Refuge Risk Assessment Guideline No. 3.2.3. Protection of the Sea (Powers of Intervention) Act 1981, Act No. 33 of 1981, assented to on 14 April 1981 (hereafter Protection of the Sea Act). 34 Intervention Convention, International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, done in Brussels 29 November 1969 (In force 6 May 1975), U.K.T.S. 77 (1975). 35 Madden and Knight, supra note 21, 109–110. 36 As a consequence of the OCS, the States and Territories in Australia are entitled to pass their own legislation giving effect to international conventions, Lipman and Bates, supra note 8, 411. 37 Protection of the Sea Act, supra note 33, Section 6. 38 Thompson Clarke Shipping, Report of AMSA/AAPSA Conference on Safe Havens and Salvage 19–20 February 2002 (Port Melbourne, Thompson Clarke Shipping, March 2002), 30. 33

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Great Barrier Reef The Great Barrier Reef poses some special considerations. The Reef is a World Heritage Area that abuts over 3,000 kilometres of the coast of Queensland. The International Maritime Organization (IMO) declared it a Particularly Sensitive Sea Area (PSSA) in 1990. Since 1987, over 600 shipping and boating incidents have been recorded in the GBRMPA’s marine incident database.39 Only 33 of these incidents, including 11 collisions and 22 ship groundings, were considered signiﬁcant but none of these resulted in a major spill of oil or chemicals. A shipping accident resulting in a major oil spill could have long-lasting, catastrophic, economic and environmental effects on the Reef. GBRMPA is a good example of co-operative federalism at work. It is a statutory Commonwealth government authority managed by a board that includes representatives of the Commonwealth and Queensland governments. The waters within the Great Barrier Reef Marine Park (GBRMP) include Commonwealth and state waters, as well as areas of EEZ. Key issues for the Authority are the management of environmental pressures associated with a large and expansive reef-based tourist industry, commercial and recreational ﬁshing, urban growth, coastal development, the downstream effects of land use, and shipping. New zoning arrangements for the entire GBRMP became effective on 1 July 2004.40 These include simpliﬁed regulations governing safety and pollution prevention response, as well as the ability to declare temporary closure areas, designate places of refuge, remove wrecks, undertake salvage operations, remediation and monitoring activities, and search and rescue within the Marine Park. Under the new zoning plan, shipping and boating activities are restricted in some zones although any zone may be used or entered without permission for most types of emergencies, including locating or securing the safety of life or a vessel endangered by stress of weather or by navigational or operational hazards, and dealing with a threat of pollution to the marine environment under Commonwealth law. While these relatively liberal regulations apply to the GBRMP, entry to a Queensland port would still be a matter for state and port authorities.

39 This data and the information in the following paragraphs draw largely on Hon. Virginia Chadwick, James Aston and Gregor Manson, “Rezoning the Great Barrier Reef Marine Park – Implications for Ship Safety, Pollution Prevention and Response”, Paper presented at SPILLCON 2004 Conference ‘Partnerships in Practice’, Brisbane, 24–27 August 2004, <www.spillcon.com/2004/ﬁnalpapers.htm>, 17 May 2005. 40 Great Barrier Reef Marine Park Authority, Great Barrier Reef Marine Park Zoning Plan 2003 (Townsville, Great Barrier Reef Marine Park Authority, 2004).

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OTHER CONSIDERATIONS Political Issues There is keen political and public interest in Australia in the preservation and protection of the marine environment. Australia actively pursues relevant issues at IMO, including for example, the need for controls to prevent the introduction of foreign organisms through discharge of ballast water and compensation for oil-spill damage from ships other than oil tankers. Reasons for the strong Australian position on the marine environment are not hard to ﬁnd: • The Australian marine environment is relatively pristine and includes three areas currently on the World Cultural and National Heritage List – the Great Barrier Reef, Shark Bay in WA and Fraser Island in Queensland. • Australia’s exports are mainly bulk ores and grain, and thus Australia has a high demand for the services of bulk carriers, which have been regarded as the ships posing relatively higher risks to the marine environment than other classes of vessel.41 • Shipping accidents in Australia waters attract considerable media and public attention, particularly those that occur within the waters of the Great Barrier Reef. Other than by way of public policy where it could be said that port authorities should assist a vessel in distress, there is nothing speciﬁc from a legal viewpoint in Australia that places an obligation on a port authority/operator to consider and decide upon a request for safe haven. Indeed having regard to the public interest, obligations and potential liabilities on ports, one could question why a port would ever grant safe haven to a casualty!42 The obligation on a state party in the International Convention on Salvage, 198943 to ensure the efﬁcient and successful performance of salvage operations for the purpose of saving life or property in danger, as well as preventing damage to the environment in general,44 has not yet been enshrined in Australian law.45

41

Ships of Shame, supra note 22, paras. 1.18–1.19. Barton Phillips, “The Question of Granting a Safe Haven – Issues of Risk Management for the Port Operators”, Paper presented to AMSA/AAPSA Conference on Safe Havens and Salvage, Sydney, 19–20 February 2002, <www.amsa.gov.au/ about%5Famsa/corporate%5Finformation/amsa%5Fspeeches/safe%5Fhavens%5Fand% 5Fsalvage%5Fconference/index.asp>, 17 May 2005. 43 International Convention on Salvage, done at London 28 April 1989, reprinted in 20 Journal of Maritime Law and Commerce, 1989, 589. 44 Ibid., Art. 11. 45 Commonwealth of Australia, House of Representatives, Standing Committee on 42

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The politics of a federal jurisdiction mean that while the central government may have the power to override decisions at a state level, it will be circumspect in exercising that power. Inevitably this means that requests for refuge will be treated in an ad hoc manner. This approach fails to give due regard to what is the best way to ensure the safety of a ship’s crew and to prevent pollution of the marine environment.46

Consistency Between the States A major complication that arises in a federal jurisdiction is the lack of consistency between the states (or provinces) with regard to arrangements and responsibilities for marine safety. In Australia, the states and the NT have different divisions of responsibilities between departments and agencies. Agencies responsible for marine safety have different names and capabilities. Some states have privatised ports; in others, ports are all state-owned. The identity of who has the authority to grant a place of refuge varies from state-to-state. For example, the issue of responsibility and accountability within Victorian waters is relatively clear – in the written word at least.47 The Minister has the responsibility to approve safe havens and this has only been delegated down to one level – the Director of Marine Safety, Victoria. There is no delegation to regional or harbour authorities. However, a harbour master appointed by a port authority and approved by Marine Safety Victoria has the powers to refuse entry to vessels into port waters and to direct movements of vessels within those port waters. Effectively, a harbour master in Victoria can refuse safe haven or allow entry to a vessel in need of assistance. In NSW, the authority rests directly with the relevant port authority through the harbour master.

Salvage Capabilities A proper level of salvage capability is one of the most important requirements for maritime safety. The current level of salvage capability in Australian waters Transport and Regional Services, Ship Salvage: Inquiry into Maritime Salvage in Australian Waters (Canberra, Commonwealth of Australia, 2004) (hereafter Ship Salvage Inquiry), <www.aph.gov.au/house/committee/trs/salvage/report.htm>, 17 May 2005, para. 4.10, at 32. 46 Madden and Knight, supra note 21, 101. 47 John Lord, “Safe Havens Policy and Practice in Australia: A Victorian Appreciation”, Paper presented to AMSA/AAPSA Conference on Safe Havens and Salvage, Sydney, 19–20 February 2002, <www.amsa.gov.au/about%5Famsa/corporate%5Finformation/amsa%5Fspeeches/safe%5Fhavens%5Fand%5Fsalvage%5Fconference/index.asp>, 17 May 2005.

is constrained by the distances involved and the lack of any vessel engaged exclusively in salvage services.48 Of the thirty-seven notable salvage operations in Australian waters between 1990 and 2001, thirteen (35 per cent) were in waters off the Queensland coast. Instances have occurred where a vessel requiring the assistance of a tug has been denied that assistance because state and port authorities have refused to release a tug.49 The Commonwealth power does not extend to the requisition of port tugs or other assets to assist a ship in distress outside the port, or to ordering the intervention of such assets, except in circumstances where the asset is a salvor in possession of the ship.50 During 2004, the House of Representatives Standing Committee on Transport and Regional Services conducted an inquiry into maritime salvage in Australian waters.51 The Committee made recommendations relating to the assessment of strategic placement of salvage tugs, the revenue needed to support salvage capability, maintaining salvage standards, the development of a national salvage plan and the provision of salvage related training.52 The report highlighted the need for a national salvage capability. It recommended that an assessment be made of Australia’s ports to determine the most strategic placements for salvage capable tugs and their equipment,53 and that a subsidy funded equally by an increase in levies and contributions from the Australian government, the states and the NT be provided to ensure that an adequate and economically viable salvage capability is maintained in the designated ports.54 It also recommended that Articles 9 and 11 of the Salvage Convention be enshrined in Australian law and that, ‘in determining the site to be used as a place of refuge, the person making the ﬁnal decision must have an adequate level of maritime experience, understanding of maritime safety issues and appropriate maritime transport ministerial authority’.55

48

Currently, salvage capability in Australia consists of 15 ocean-going salvage capable tugs, all of which are owned by Adsteam’s subsidiary United Salvage and are normally engaged in harbour towage duties, Ship Salvage Inquiry, supra note 45, para. 3.1, at 9. 49 This was the situation in February 2000 when the chemical tanker ‘Stolt Otome’ suffered a breakdown off the Queensland coast and several ports refused to release a tug to assist, Baird and Lipscombe, supra note 6. 50 Ibid. 51 Ship Salvage Inquiry, supra note 45. 52 Ibid., List of Recommendations, xiii–xiv. 53 Ibid., Recommendation 1, para. 3.45, at 20. 54 Ibid., Recommendation 2, para. 3.76, at 28. 55 Ibid., Recommendation 8, para. 5.31, at 47.

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CONCLUSION A federal jurisdiction places a premium on a high level of co-operation and consultation between all parties for the provision of places of refuge, and the planning of salvage capability. In Australia’s situation, these parties include AMSA, the Commonwealth Department of Transport and Regional Services, the Department of Environment and Heritage, state marine safety and environmental agencies, ports, salvors and industry, as well as the GBRMPA within the area of the GBRMP. The respective powers of intervention of the Commonwealth and the states in directing a casualty to a place of refuge must be clear. There is a strong case that the power to deal with requests for a place of refuge in Australia should be centralised further.56 Problems arise in Australia due to the fragmentation of power to grant refuge and the reliance on non-binding instruments, such as the National Plan and the National Maritime Place of Refuge Risk Assessment Guidelines. More seriously, a federal jurisdiction introduces another level of government with great scope for political intervention and emotive community involvement. These factors all work against a prompt and effective response to a request for a place of refuge that balances the interests of all parties and protects the lives of seafarers.

56

Madden and Knight, supra note 21, 17. The present Australian government routinely displays an interest in lessening the power of the states. In a maritime example, on 15 December 2004, the Prime Minister announced that the Commonwealth government would assume direct responsibility for counter-terrorism prevention, interdiction and response in all offshore areas of Australia outside of the territorial sea baseline. This effectively qualiﬁed state jurisdiction over the ﬁrst three miles of territorial sea.

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Annex 1 National Maritime Place of Refuge Risk Assessment Guidelines National Plan Management Committee November 2002 [Endorsed by the Australian Transport Council on 23 May 2003]

Table of Contents Page National Maritime Place of Refuge Risk Assessment Guidelines ..........

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1. Introduction ........................................................................................ 1.1. Purpose ...................................................................................... 1.2. Application ................................................................................ 1.3. Deﬁnition of a Place of Refuge and a Maritime Casualty .......... 1.4. Why Provide a Place of Refuge? ..............................................

393 393 394 394 396

2. Requests for a Place of Refuge .......................................................... 2.1. Who in Australia has the Authority to Grant a Place of Refuge? ...................................................................................... 2.2. Who Should Make a Request and to Whom? ............................ 2.3. Information to be Supplied With a Place of Refuge Request ....

397 397 398 399

3. Deciding Whether to Grant a Request for a Place of Refuge ............ 3.1. Introduction ................................................................................ 3.2. Decision Making Processes ........................................................ 3.3. Implications of Refusing a Place of Refuge Request ................

399 399 400 401

4. Management Issues ............................................................................ 4.1. When and How Casualty Coordination is Handed Over Between Jurisdictions ................................................................ 4.2. Powers of Intervention of the Commonwealth and the States/NT in Directing a Casualty to a Place of Refuge ............ 4.3. Liability and Compensation ......................................................

402 402 403 405

The Australian Experience 5. Appendices .......................................................................................... 5.1. Appendix A Contact Details for Commonwealth/State/NT Maritime Agencies .................................................................... 5.2. Appendix B Initial Information to be Supplied With a Place of Refuge Request .................................................................... 5.3. Appendix C Issues to be Considered in Continuing to Respond to a Maritime Casualty at Sea .................................... 5.4. Appendix D Selecting a Place of Refuge .................................. 5.5. Appendix E Pro Forma for Transfer and Acceptance of Coordination for a Maritime Casualty or Place of Refuge Request Between Commonwealth / State / NT Agencies ................................................................................ 5.6. Appendix F Pro Forma for a Directions Notice Issued Under Commonwealth / State / NT Intervention Legislation ..............

393 406 406 406 406 406

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National Maritime Place of Refuge Risk Assessment Guidelines 1. Introduction When dealing with ships in distress, the requirement is to ﬁnd them an area of sheltered water where the situation can be stabilised, the cargo made safe and the salvors and authorities can evaluate what further steps are necessary without the pressure of a crisis hanging over their heads. The concern of port authorities that they should not be exposed to the risks of pollution, ﬁre or explosion is well understood and is not in any way challenged. But equally, this is an issue which will not go away and must be addressed. We cannot continue to permit a situation to unfold in which salvors dealing with a damaged vessel containing a potentially hazardous cargo have nowhere to go.

Secretary-General, International Maritime Organization (Keynote address: 22nd World Ports Conference of the International Association of Ports and Harbours (IAPH), Montreal, Canada, May 2001)

1.1. Purpose 1.1.1 The National Maritime Place of Refuge Risk Assessment Guidelines (the Guidelines) are intended to assist Australian maritime administrations, ship Masters and the maritime industry in identifying: • places of refuge in circumstances where an emergency cannot be dealt with at sea; and, • the appropriate procedures to access a place of refuge. 1.1.2 The Guidelines have been prepared recognizing that there is a clear separation in responsibility between maritime security and maritime safety.

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Chapter 14 These Guidelines are intended to assist both maritime safety for commercial trading ships and to protect the environment.

1.2. Application 1.2.1 The Guidelines apply to any maritime incident giving rise to circumstances where State/Northern Territory (State/NT) and/or the Commonwealth government agencies need to consider a request for a place of refuge within internal waters, the territorial sea or the Australian Exclusive Economic Zone. 1.2.2 The Guidelines are complementary to, and should be read in conjunction with, any existing applicable State/NT guidelines. 1.2.3 The Guidelines should at all times be applied in a manner consistent with the principles of international law, in particular those relating to the balance of interests between a ship in distress and Australia’s national interest. Thus, these Guidelines: • are voluntary; • are ﬂexible to take into account the wide variety of circumstances that might arise; • allow for case-by-case analysis and application; and, • seek to enhance a cooperative and consensus approach between all parties.

1.3. Deﬁnition of a Place of Refuge and a Maritime Casualty 1.3.1 “Place of refuge” is a new term to maritime and International Maritime Organization (IMO) practices and replaces the previously used terms “port of refuge” or “safe haven”. 1.3.2 A place of refuge is a place where a ship in need of assistance can ﬁnd favourable conditions enabling it to take action to stabilize its condition, protect human life and reduce the hazards to navigation and to the environment. 1.3.3 “Place of refuge” does not appear in any IMO instrument or in the United Nations Convention on the Law of the Sea (UNCLOS). However, the advantage of the term, place of refuge, is that while it may include ports, it is not necessarily conﬁned only to such ports.

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Additionally, place of refuge is more consistent with a “place of safety” in the Lloyds Open Form. 1.3.4 When a vessel is in a position where: • the safety of the vessel, its crew and/or passengers are at risk; or, • it poses a threat to the marine environment or other property, such a vessel should seek a place of refuge. 1.3.5 Generally, access to a place of refuge may be sought in circumstances involving a maritime casualty, force majeure or distress, or some other operational, logistical or medical situation. 1.3.6

A “maritime casualty” may arise following a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to the ship or its cargo.

1.3.7

There may also arise circumstances where a foreign ship undertaking the right of innocent passage through the territorial sea, seeks to stop and anchor in cases of force majeure or distress. This right is explicitly referred to by UNCLOS in the case of navigation in the territorial sea (Article 18(2)), straits used for international navigation (Article 39.1(c)) and in archipelagic waters (Article 54).

1.3.8

Distress could be the result of force majeure or other disaster that endangers the safety of a vessel. Force majeure is understood as an act of a higher force, a force or event beyond reasonable human control, acts of God, events generally uncontrollable by humanity including storms, hurricanes and other natural disasters.

1.3.9

Finally, as part of a vessel’s normal operations, there may be occasions when it requires to remain at a place, either offshore or in a port, to effect temporary repairs, to land a sick or injured crew member, to pick up navigational charts, emergency stores, etc.

1.3.10

Any type of ship, including a warship, may invoke the right to a place of refuge provided there is a genuine distress, whatever its cause. It should be noted that if a place of refuge is granted to a warship, most relevant international conventions, in particular those relating to intervention, liability and compensation, do not apply (see also Section 4.3, below).

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1.4. Why Provide a Place of Refuge? 1.4.1 Under longstanding maritime tradition, and the practice of good seamanship, a ship’s Master faced with a maritime casualty, force majeure, or some other operational, logistical or medical situation is expected to seek a place of refuge. 1.4.2 While there may be a natural reluctance for some maritime administrators to accept damaged or disabled ships into their area of responsibility, it is rarely possible to deal satisfactorily and effectively with a marine casualty in open sea conditions. In some circumstances, the longer a damaged ship is forced to remain at the mercy of the elements in the open sea, the greater the risk of the vesse’s condition deteriorating or the sea, weather or environmental situation changing, and thereby becoming a greater potential hazard to Australia. 1.4.3 A place of refuge should therefore be provided by Australia with the aim of protecting: • the safety of the vessel’s crew, passengers and salvage crew; • the safety of human life and health within the immediate vicinity of the distressed vessel; • the ecological and cultural resources, and the marine, coastal and terrestrial environments; • economic and socio-economic infrastructure, including sensitive installations, within the coastal zone and ports; and, • the safety of the vessel and its cargo.

International Law 1.4.4 As a Contracting State to the International Convention on Salvage, 1989 (Salvage 1989), Australia is obliged under Article 11 of the Convention when considering a request for a place of refuge, to take into account the need for cooperation between salvors, other interested parties and public authorities to ensure the efﬁcient and successful performance of salvage operations. Article 11 of the Salvage Convention states: A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into account the need for co-operation between salvors, other interested parties and public authorities in order to ensure the efﬁcient and successful performance of salvage operations for the purpose of saving life or property in danger as well as preventing damage to the environment in general.

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1.4.5 However, there is at present no international requirement for a country to provide a place of refuge for vessels in distress. Thus, when considering a request for a place of refuge, Australia, like most other maritime administrations, is faced with the need to balance several competing factors including: (a) the long-established humanitarian right of a ship in distress to seek a place of refuge for the purpose of overcoming the distress and carrying out repairs, etc. The right of a ship in distress to seek refuge is an old established and universally accepted humanitarian right under international law. Any type of ship, including warships, may invoke this right, provided there is a genuine distress, whatever its cause. The right is limited by its purpose – to overcome the distress by seeking shelter, carrying out the necessary repairs, etc; (b) the duty of Australia to render assistance to ships in distress. The duty to render assistance to vessels and persons in distress at sea is also a well-established principle of international maritime law [see for example: the International Convention for the Safety of Life at Sea (SOLAS) 1974, Chapter V and the International Convention on Maritime Search and Rescue (SAR) 1979, Chapter 2]. (c) the right of Australia to regulate, and to place conditions on, entry into its ports. The right of Australia to regulate entry into its ports is reﬂected in Articles 2 and 25(2) of UNCLOS; and, (d) the right of Australia to protect its coastlines and marine resources from pollution or the threat of pollution. The right of Australia to take action to protect its coastline or related interests from pollution or threat of pollution following upon a maritime casualty is also well established in international law (see for e.g. UNCLOS, Articles 194, 195, 198, 199, 211, 221 and 225).

2. Requests for a Place of Refuge 2.1. Who in Australia has the Authority to Grant a Place of Refuge? 2.1.1

2.1.2

Within Australia, only the State/NT government agency as listed in Appendix A or the Commonwealth Government’s Australian Maritime Safety Authority (AMSA) has the authority to grant a request for a place of refuge. Generally, within Australia, a request for a place of refuge which is:

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Chapter 14 • within internal waters or the three nautical mile coastal waters will be considered by the relevant State/NT government agency in Appendix A; or, • within any other waters (i.e. outside of the three nautical mile coastal waters to the limit of the Australian Exclusive Economic Zone, including the external territories), will be considered by AMSA in consultation with other relevant agencies including the Great Barrier Reef Marine Park Authority for requests within the Great Barrier Reef Marine Park.

2.1.3

Appendix A provides initial contact details for Commonwealth / State / NT government agencies that have the authority to grant a request for a place of refuge.

2.2. Who Should Make a Request and to Whom? 2.2.1 The most appropriate person to make a place of refuge request is the person in charge of the ship at the time. While this is most likely to be the vessel’s Master, it is acknowledged that there is a need to maintain ﬂexibility in light of prevailing circumstances and that a request for a place of refuge could equally come from a vessel’s ofﬁcer, the owner, the operator, the agent or a salvor. 2.2.2 All requests for a place of refuge should be made through AMSA’s Australian Rescue Coordination Centre. 2.2.3 However, allowance should be made for passing ships or ships visiting Australia for the ﬁrst time that may not be familiar with standard reporting requirements in Australian waters. Consequently, a place of refuge request could equally be made to a relevant State/NT agency, a port authority/corporation, a harbour master, etc, depending upon the circumstances prevailing at the time. 2.2.4 If a port authority/corporation or harbour master receives a request for a place of refuge they should advise AMSA’s Australian Rescue Coordination Centre and the relevant State/NT agency. 2.2.5 When a place of refuge request is made it is important to try to minimize the number of contact points between those interests associated with the vessel and the relevant government agency. The problems associated with multiple points of contact during a maritime incident are well recognized. Accordingly, the prime contact point during an incident should be the point to which contact was ﬁrst made unless the

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responsibility for managing an incident has been formally passed to another jurisdiction or responsible agency (see Section 4.1, below)

2.3. Information to be Supplied With a Place of Refuge Request 2.3.1 A vessel requesting a place of refuge should supply all relevant information to assist the relevant Commonwealth or State/NT agency reach a decision on whether to grant a request for a place of refuge. Full details of the requisite information are outlined at Appendix B.

3. Deciding Whether to Grant a Request for a Place of Refuge 3.1. Introduction 3.1.1 In Australian waters, places of refuge are determined on a case-by-case basis and are not pre-designated. 3.1.2 This approach is premised on the fact that a place of refuge is not a ﬁxed location but depends on the characteristics of the vessel, the facts of the incident and prevailing environmental conditions and the likely consequences. For example, a place of refuge that is deemed unsafe for a particular vessel in a particular instance may well be held to be safe for the same vessel in different circumstances. 3.1.3 Commonwealth or State/NT agencies should initially explore the option of continuing to respond to a maritime casualty at sea rather than automatically granting approval to access a place of refuge. 3.1.4 In order to do so, the relevant maritime agency will need to collect, synthesise and analyse all relevant information so as to allow a comparison between the risks involved if the ship remained at sea and the risks that it would pose to the place of refuge and its environment. Appendix C outlines the information that would be required in this instance. 3.1.5 In circumstances where it is not possible to respond to a maritime casualty at sea the relevant Commonwealth or State/NT agency will need to address a range of criteria when assessing a request for a place of refuge. 3.1.6 Appendix D outlines the relevant information that will be needed to assist the relevant Commonwealth or State/NT agency reach a decision on whether to grant a request for a place of refuge. Where possible, this information should be provided by the ship or its local agent. However,

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Chapter 14 where applicable, specialized information may be sought from other maritime agencies and/or other relevant government organizations.

3.1.7 In assessing a place of refuge request, the relevant Commonwealth or State/NT agency may request that duly qualiﬁed personnel undertake an expert inspection of the ship. During a number of recent maritime incidents, both AMSA and the States/NT have made use of an “on scene casualty coordinator” placed on board a vessel during an incident by an agency to provide independent and objective advice. On such occasions, the on scene casualty coordinator has been a surveyor with extensive knowledge of ship structures and stability and experience in salvage operations. The on scene casualty coordinator provides advice to the Incident Coordinator about onboard actions and procedures either proposed or undertaken by the Master or the salvor. 3.2. Decision Making Processes 3.2.1 The reporting and decision-making process following receipt of a place of refuge request is set out below. 3.2.2 The agency receiving a request for a place of refuge shall immediately inform other relevant stakeholders. In most instances, this will involve AMSA’s Australian Rescue Coordination Centre notifying State/NT lead agencies in accordance with existing arrangements and contacts under the National Plan (see section 2.2 of the National Marine Oil Spill Contingency Plan), including relevant port authorities/corporations if they are likely to be a place of refuge. Where a State/NT or port authority/corporation receives a direct request for a place of refuge, AMSA’s Australian Rescue Coordination Centre should be notiﬁed without delay. 3.2.3 Responsibility for assessing a request for a place of refuge will generally mirror the division of responsibility for pollution response as set out in the Inter-Governmental Agreement on the National Plan to Combat Pollution of the Sea by Oil and Other Noxious and Hazardous Substances – that is: • requests for a place of refuge in a port or within the three nautical miles coastal waters will be the responsibility of the relevant State/NT; • requests for a place of refuge in a port of an external territory, the coastal waters of an external territory or waters outside the three nautical miles coastal waters of a State/NT will be the responsibility of AMSA; or, • requests for a place of refuge in the Great Barrier Reef Marine Park

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outside of coastal waters will be the responsibility of AMSA in consultation with the Maritime Safety, Queensland and the Great Barrier Reef Marine Park Authority. 3.2.4 Assessment of a place of refuge request should be undertaken in accordance with any speciﬁc applicable local, regional or State/NT guidelines or plan for assessing such requests. Where no such guidelines or plan exist, these Guidelines may be used. 3.2.5 The process of assessing requests for places of refuge will in all cases involve consultation between the statutory agency, as outlined above, and any agency which could include a port authority/corporations, and/or other Government agencies with responsibility for areas affected or likely to be affected. 3.2.6 The decision to grant a place of refuge will be made by the nominated ofﬁcial in any applicable State/NT, local, regional guidelines or plan. 3.2.7 Once a decision on whether to grant or refuse a place of refuge request has been made that decision should be immediately communicated to the person who made the request, and AMSA’s Australian Rescue Coordination Centre if not the lead agency. AMSA’s Australian Rescue Coordination Centre will inform neighbouring State/NT agencies of the decision for information. 3.3. Implications of Refusing a Place of Refuge Request 3.3.1 Australia would appear to be better placed than many maritime nations, in that passing trafﬁc not calling at Australian ports is minimal. At the same time, our relative isolation means that there are few nearby maritime administrations that could provide assistance to a vessel requesting a place of refuge, unlike other areas of the world such as Europe, Asia, etc. 3.3.2

Consequently, in assessing a place of refuge request, the relevant Commonwealth or State/NT agency needs to be cognizant of the fact that a vessel may have few other options available to it in the likelihood that the place of refuge request is denied.

3.3.3 In refusing a place of refuge request a Commonwealth or State/NT agency should give consideration to alternative arrangements to assist a maritime casualty.

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4. Management Issues 4.1. When and How Casualty Coordination is Handed Over Between Jurisdictions 4.1.1 As indicated in Section 2.2, the prime contact point during an incident should be the point to which contact was ﬁrst made unless the responsibility for coordinating an incident has been formally passed to, and accepted by, another jurisdiction or responsible agency. 4.1.2 During a response to a maritime casualty and/or place of refuge request, there will come a time when coordination of the casualty may need to be passed to another jurisdiction. This may arise as a result of a decision to pass coordination following movement of the casualty and/or the granting of a place of refuge request in another jurisdiction. The decision to pass coordination to another jurisdiction may also arise due to limitations on stafﬁng, knowledge or skill, pressures from other maritime casualty and/or place of refuge requests, etc. 4.1.3 In order to clarify the transfer and acceptance of coordination between Commonwealth/State/NT agencies there is a need for a formal handover process. 4.1.4 Taking coordination of a maritime casualty and/or place of refuge request means that: • accountability for the conduct of the incident rests with the coordinating agency until coordination is transferred to, and accepted by, another agency; and, • responsibility for a particular activity or portion of the incident may be delegated to another competent agency. In this case the responsibility for the proper conduct of that activity or process rests with the agency so delegated. However, the accountability for the incident still remains with the agency that has coordination for the incident. 4.1.5 A suggested pro forma for the transfer and acceptance of coordination between Commonwealth / State / NT agencies is at Attachment E. 4.1.6 Once the formal handover is completed, the new coordinating agency assumes responsibility for all aspects of responding to a maritime casualty and/or a place of refuge request including response coordination and planning, resource identiﬁcation and allocation, preparation and distribution of situation reports, media brieﬁng, etc.

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4.2. Powers of Intervention of the Commonwealth and the States/NT in Directing a Casualty to a Place of Refuge Background 4.2.1 The powers of intervention were conceived for dealing with a situation where those in control of a polluting or potentially polluting vessel were blatantly not complying with the wishes of the relevant Commonwealth or State/NT agency by, for example, failing to employ competent salvors or by refusing to take a tow or refusing to proceed to a speciﬁed place of refuge, or were unable to process with the salvage operations due to unforeseen developments. It was not envisaged that they would be used to intervene in a situation where competent salvors were clearly doing all they could to bring a salvage incident to a successful conclusion. (Modiﬁed after the UK Maritime Accident Investigation Board Report into the Sea Empress incident as quoted in the Report of Lord Donaldson’s Review of Salvage Intervention and Their Command and Control) 4.2.2 International Convention relating to Intervention on the High Seas in cases of Oil Pollution Casualties 1969 (the “Intervention Convention”), as amended by the Protocol of 1973 relating to substances other than oil and, in relation to the territorial sea and internal waters, derive from UNCLOS. The Intervention Convention entered into force internationally in 1975 and for Australia in 1984. 4.2.3 Commonwealth implementing legislation is the Protection of the Sea (Powers of Intervention) Act 1981 and subordinate legislation including regulations and Marine Orders Part 92. 4.2.4 It should be noted that the position in internal waters (i.e. ports and harbours) is a matter for State/NT legislation in accordance with Australia’s domestic law. Most Australian States (New South Wales, Victoria, Tasmania, Queensland and South Australia) have speciﬁc legislation that deals with intervention powers. These powers may differ slightly from the Commonwealth Act and the relevant legislation should be consulted prior to considering such action. 4.2.5

A suggested pro forma for the issuing of a directions notice by Commonwealth / State / NT agencies is at Attachment F.

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Measures Available Under the Intervention Convention and the Protection of the Sea (Powers of Intervention) Act 4.2.6 The operative provision of the Convention is Article I, which allows parties to: “take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences.”

4.2.7 There are thus two criteria that have to be satisﬁed before Australia can intervene under the Convention – there has to be a “maritime casualty” and that casualty must represent “a grave and imminent” danger of pollution to Australia. 4.2.8 An important additional provision is that parties can intervene where pollution is threatened “from acts related to such a casualty, which may reasonably be expected to result in major harmful consequences”, thereby enabling intervention where salvage operations go wrong. 4.2.9 Where s10 of the Protection of the Sea (Powers of Intervention) Act 1981 applies (incidents within the territorial sea), intervention is possible where AMSA is satisﬁed that oil or a noxious substance is likely to escape from such a ship. Application of the Intervention Convention and Places of Refuge 4.2.10

When an incident occurs and the required intervention powers are contained in State/NT legislation, then that legislation should be used whenever possible.

4.2.11

In an operational context, the relevant Commonwealth and State/NT intervention legislation is complementary, and co-operation between AMSA and the various State/NT agencies will normally achieve the desired outcomes.

4.2.12

In using the relevant Commonwealth and State/NT intervention legislation a pro-active approach whereby the relevant agency seeks to provide any necessary assistance to assist a Master and/or a salvor to achieve a desired outcome is more likely to be productive rather than using the intervention powers as a measure of last resort after salvage attempts, etc, have failed.

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4.2.13

However, should there be disagreement between the Commonwealth and the relevant State/NT agency or the Master or the salvor, on the best course of action following a maritime casualty and/or a place of refuge request, the following should be noted.

4.2.14

The Protection of the Sea (Powers of Intervention) Act 1981 provides the Commonwealth, through AMSA, with the authority to direct a ship involved in a maritime casualty falling within the scope of the Intervention Convention on the high seas, or a ship in the territorial sea or sea on the landward side of the territorial sea not with the limits of a State/Territory and internal waters (for certain deﬁned ships) to enter a particular port or sheltered area irrespective of the consent of the relevant port authority and/or State/NT government. In this instance, a ship, as deﬁned in Schedule 1 of the Protection of the Sea (Powers of Intervention) Act 1981 (which reproduces the Intervention Convention), means: (a) any sea-going vessel of any type whatsoever, and (b) any ﬂoating craft, with the exception of an installation or device engaged in the exploration and exploitation of the resources of the sea-bed and the ocean ﬂoor and the subsoil thereof.

4.2.15

For the purposes of ships within internal waters, only those trading ships on interstate or overseas voyages, ﬁshing vessels on overseas voyages and ships other than pleasure craft can be subject to an AMSA direction.

4.2.16

The Commonwealth’s intervention powers, however, do not extend: • to the requisitioning of port tugs or other assets to assist a ship in distress outside the port, nor to ordering the intervention by such assets – except in circumstances where the asset is a salvor in possession of the ship seeking a place of refuge; nor, • to requisitioning State/NT assets or to directing State/NT ofﬁcials without State/NT consent.

4.3. Liability and Compensation 4.3.1 The provisions of the various liability and compensation conventions developed under the aegis of IMO remain applicable in determining liability for pollution damage under a place of refuge request. The relevant conventions all contain provisions relating to geographical scope of application that would continue to apply if a pollution incident were to occur within a place of refuge.

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4.3.2 However, a prudent approach would involve the use of tools such as indemnities and letters of undertaking. Such tools could be used to address costs, liability and compensation associated with the granting of a place of refuge request which could range from deployment of marine pollution response equipment to administrative, environmental, socioeconomic and cultural costs as well as operational costs and liabilities incurred within a port if a port is used as a place of refuge. Such tools should be negotiated directly between the relevant Commonwealth / State / NT agency and the vessels’ Master, owner or insurer, as appropriate. Indemnities and letters of undertaking may require to be backed by ﬁnancial bonds or guarantees. 4.3.3 As previously indicated (see Section 1.3.10) a warship seeking a place of refuge is exempt from the normal IMO conventions relating to intervention, liability and compensation. The Royal Australian Navy (RAN) is responsible for determining Australia’s response to a maritime casualty and/or a place of refuge request involving either a domestic or foreign warship. Therefore in circumstances where such a vessel requests a place of refuge, the request should be formally made through the Department of Defence and/or the Department of Foreign Affairs and Trade. It would be expected that the RAN would liaise closely with Commonwealth and State/NT agencies as well as with port authorities/corporations/and other relevant organizations when port entry is involved and prior to a ﬁnal decision being made. These Guidelines may then be invoked.

5. Appendices 5.1. Appendix A Contact Details for Commonwealth/State/NT Maritime Agencies 5.2. Appendix B Initial Information to be Supplied With a Place of Refuge Request 5.3. Appendix C Issues to be Considered in Continuing to Respond to a Maritime Casualty at Sea 5.5. Appendix E Pro Forma for Transfer and Acceptance of Coordination for a Maritime Casualty or Place of Refuge Request Between Commonwealth / State / NT Agencies 5.6. Appendix F Pro Forma for a Directions Notice Issued Under Commonwealth / State / NT Intervention Legislation

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Appendix A Initial Contact Details for Commonwealth / State / NT Maritime Agencies Commonwealth AMSA’s Australian Rescue Coordination Centre Duty Ofﬁcer: (02) 6230–6811 or Freecall: 1800 641–792

Tasmania Marine and Safety Tasmania Manager, Marine Operations: 0419 005 677

Queensland Maritime Safety Queensland: 0419 300 152

South Australia SA Transport: (08) 8378 2380 (Pager) or 0408 848 129

New South Wales Relevant Port Authority Newcastle: (02) 4985–822 Sydney: (02) 9296 4000 Port Kembla: (02) 4274–0201

Western Australia Department of Planning and Infrastructure Duty Ofﬁcer: 0417 938 157 or 0438 916 223

Victoria Marine Safety Victoria Duty Ofﬁcer: (03) 9883–5331 (Pager)

Northern Territory Department of Infrastructure, Planning and Environment Department Duty Ofﬁcer – Transport: 0401 117 454 or Duty Ofﬁcer Darwin Port Corporation: 0419 840 041

Appendix B Initial Information to be Supplied With a Place of Refuge Request • A vessel requesting a place of refuge should supply the following information to assist in the decision making process: • Name and Flag of the vessel • Ship’s identiﬁcation number (IMO number) • Type of vessel and cargo classiﬁcation, (access automated manifest systems such as “Sea Cargo”) • Size (tonnage), length, beam and draft of vessel • Name and address of the local or Australian agent • Name(s) of the registered owner(s), the registered bareboat charter(s) and their registered address(es)

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• Name of registered Company, its registered address and the address(es) from where it carries out the safety management activities • Name(s) and contact details of the “Designated Person” nominated on the vessel’s ISM Document of Compliance • Identiﬁcation details of ship’s insurers • Name(s) and contact details of the local P&I Club representative • Position of vessel (and how determined, GPS, dead reckoning, best guess) • Course and speed (steaming, adrift or at anchor) • Weather and sea conditions • Type and quantity of bunker fuel on board • Nature and quantity of hazardous or harmful substances carried • Cause of damage and the nature and extent of damage • Details of any casualties on board or in the vicinity of the ship • Nature of immediate assistance required • Actual pollution or potential for pollution • Response actions taken by a vessel (for eg: whether salvors have been contacted or engaged • Details of place of refuge request (area, coordinates, etc) • Person on ship making request • Preferred language for communications • Details of all vessels’ satellite communication numbers (for eg: INMARSAT C / Satphone / mobile / fax, etc, numbers) • Date and time of request.

Appendix C Issues to Be Considered in Continuing to Respond to a Maritime Casualty at Sea Maritime agencies should initially address the option of continuing to respond to a marine casualty at sea. In these situations, the following matters should be considered: • Seaworthiness of the vessel, in particular buoyancy, stability, availability of means of propulsion and power generation, also is anchoring possible • Current and tidal conditions at sea • Prevailing and forecast weather conditions for the time the vessel is expected to remain at sea • Adequate persons (in number and qualiﬁcations) on board to fulﬁll all functions on board and an assessment of human factors including fatigue. If not, can these personnel be supplied from shore and be placed on board • Is a salvor at the scene and has a commercial salvage contract been concluded between the relevant parties

The Australian Experience • • • • • •

• • •

• • •

•

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Can the vessel be accessed by helicopter Trafﬁc density in the incident area Adequate sea room and depth of water available to allow ship to drift Availability of sufﬁcient tugs and support vessels and where are they stationed Additional safety measures to be taken to ensure the ship can safely remain at sea How will all imposed prevention and pre-cautionary measures such as navigation instructions, bridge complement, manning of engine room, number of tugs, etc., be complied with (e.g. representatives, inspectors or salvors on board) Availability of ﬁre ﬁghting, oil and chemical pollution combating equipment and sufﬁcient qualiﬁed personnel Option to restrict or prohibit access of ships/craft and personnel and to enforce it, if circumstances so require (establishment of sea safety zones) Requirement for restrictions regarding the use of the sea area in the vicinity of the vessel and the use of air space above or in the vicinity of the vessel – have these been imposed by the competent authorities and how are they enforced Possibility of lightering at sea and availability of appropriate equipment (barges, cranes, cargo gear, etc.) and personnel Sustainability/availability of an anchorage or berth in a port and any potential environmental or other effects Which ﬁnancial indemnities/bonds have been or have to be requested to cover personal injuries and other damages such as damages to the environment, port channels and installations, costs for combating the incident, costs for entering a port (pilot, tugs, crew, etc.), port dues, delays to other vessels/cargoes in the port, leased berth usage, cargo handling, repairs, disposal of any types of wastes, wreck removal, etc. Also is there a need for ﬁnancial bonds, etc., to cover costs associated with environmental / socioeconomic / cultural assessments and How and up to which amount have these been secured (e.g. bonds, bank guarantee, letter of indemnity, etc.).

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Appendix D Selecting a Place of Refuge Operational Criteria The following operational criteria must be considered in selecting a place of refuge: • What is the state of the vessel – does it urgently require access to the nearest place of refuge or can the vessel endure a longer passage to a place of refuge with either better facilities and resources or one which is of lesser environmental, socio-economic and cultural sensitivity • What are the risks posed by the vessel in distress to the population, environment and installations, particularly those requiring special protection, at the intended place of refuge and in the vicinity, taking into consideration the “worst case” scenario and the likelihood of it actually occurring, if it is shifted to the intended place of refuge • In case of dangerous goods on board – the type of goods on board and what affects may result from one of the incidents mentioned above • Overall risk posed to coastal waters, marine species, coastline or proposed place of refuge • Estimated distance and transit time to place of refuge • Adequate sea room and depth of water with relatively unobstructed approach from seaward • Presence of good holding ground for both immediate anchoring during approach and at place of refuge • Availability and positioning of suitable tugs or other support vessels during approach • Availability of helicopters or ﬁxed wing aircraft for rescue or surveillance and/or pollution response function • Provision of marine pilot during approach • Prevailing weather conditions during approach • Shelter from prevailing and forecast weather and swell at place of refuge and forecast weather conditions for the time vessel is expected to remain at place of refuge • Access to place of refuge by land, sea and air transport modes • If it is desirable or necessary to bring the vessel into a port, availability of suitable anchorage or berth, risks of entry into port such as potential channel blockage, environmental effects (spills etc.,) effect on ongoing port operations such as delays to other vessel movements, berth/facility lease arrangements and consequential cargo impacts of berth use especially if cargo is to be discharged. • Availability of ﬁre ﬁghting, oil and chemical pollution response equipment and operating personnel

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• Availability of reception facilities for harmful and dangerous cargoes • Compliance with instructed preventative measures (navigational directions, marine surveyor/salvor aboard to ensure compliance with preventative instructions, tugs in attendance as directed, compulsory pilotage) • Any requirement under Administration legislation or for commercial/operational reasons to post an adequate bond to cover any risk (pollution, grounding, damage to port facilities, business disruption, etc.) • Restricting or prohibiting unauthorised vessels/vehicles and personnel as required during operation • Through Air Services Australia, restriction on use of air space over and in the vicinity of the vessel at the place of refuge, if required • As required, notiﬁcation of relevant agencies such as Quarantine, Immigration and Customs • When practical, and particularly where serious impact to coastal resources may occur, consultation with the community should be undertaken as soon as possible • Agreement by the Master and/or the owner of the ship to the proposal

Environmental, Cultural and Socio-economic Criteria The requirements listed under must be considered in conjunction with the operational criteria: • Assessment of environmental risk to ecological, cultural and socio-economic resources, both along the approach to, and at the proposed place of refuge. This may include inter alia assessment of ecological and socio-economic resources include reefs, islands, coastline, signiﬁcant species, sensitive habitats, ﬁsheries, commercial activity and amenities and assessment of risk to culturally signiﬁcant resources including sites, species, etc • Analysis of “worst case” scenario, the likelihood of the scenario occurring and the effects on environmental, cultural and socio-economic resources • Liaison with environmental and cultural groups within the community and • Concurrence or approvals of statutory agencies.

Appendix E Pro Forma for Transfer and Acceptance of Coordination for a Maritime Casualty or Place of Refuge Request Between Commonwealth / State / NT Agencies It is hereby agreed that the [NAME OF COMMONWEALTH / STATE / NT AGENCY] transferred coordination for the: (a) maritime casualty [VESSEL NAME]1 (b) place of refuge request from the [VESSEL NAME]1

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to the [NAME OF COMMONWEALTH / STATE / NT AGENCY] which accepted coordination on [SPECIFY DATE AND TIME]. Signed by:

Name: Name: Position: Position: [NAME OF COMMONWEALTH / [NAME OF COMMONWEALTH / STATE / NT AGENCY TRANSFERRING STATE / NT AGENCY ACCEPTING COORDINATION] COORDINATION] 1–

Strike out which ever is not applicable

Appendix F Pro Forma for a Directions Notice Issued Under Commonwealth / State / NT Intervention Legislation NOTICE UNDER THE [Name of Relevant Commonwealth / State / NT Intervention Legislation] Act [Year] [To be printed on relevant Commonwealth / State / NT Maritime agency letterhead] I, [Insert full name of delegate authorised to issue notice], Delegate of the [Name of relevant Commonwealth / State / NT maritime agency], pursuant to the provisions of Section [Insert relevant section number] of the [Name of Relevant Commonwealth / State / NT Intervention Legislation] Act [Year] hereby require the owners [Insert full name of owner(s)]; the Master, [Name of Master] of the [Insert ﬂag state] ﬂag vessel known as the [Insert name of vessel] (the vessel) having Radio Call Sign [Insert call sign], (and if circumstances warrant, the Salvors, [Insert name of salvor]) jointly and severally to comply with the following instructions irrespective of signing a Lloyds Open Form or other similar agreement:

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[List instructions]: For example: 1. The [Insert name of vessel] be towed from [Insert name of area or region or location] to a safe anchorage off [Insert name of area or region or location]; or, 2. Prior to departing from the [Insert name of area or region or location] anchorage and continuing its voyage the vessel’s owner/master shall supply [Insert name of relevant Commonwealth / State / NT Maritime agency] with a written report from the [Insert name of Classiﬁcation Society] verifying that the vessel’s [Insert nature of problem or incident] meets the requirements of [Insert name of Classiﬁcation Society] rules. I further require that you acknowledge this notice and advise me upon receipt of this notice via the [Insert name of Coastal Radio or Coordination Centre] facsimile number: [+61 Insert fax number] by [Insert time response required] of the action you have taken or propose to take to comply with this notice. Dated this [Day] of [Month] [Year] [Signature] [Name of person authorised to issue Notice]

Chapter 15 Places of Refuge: The Belgian Experience Eric Van Hooydonk GEOGRAPHICAL POSITION Belgium is a relatively small but densely populated country in the heart of Europe. Its capital is Brussels, which at the same time serves as the European Union’s centre of decision-making. Belgium has a 66 kilometre long coastline in the southern part of the North Sea. The Belgian territorial sea, continental shelf and exclusive economic zone are enclosed by those of France, the Netherlands and the United Kingdom and have a surface of approximately 3,600 square kilometres. The water depth in these areas varies between 20 and 30 metres. Maritime trafﬁc is extremely dense. Yearly, 200,000 to 300,000 vessels pass through the Belgian marine areas.1 Four harbours are located along the Belgian coast: – Zeebrugge, an international multipurpose port handling some 32 million tonnes of cargo2 and the European market leader for ro/ro trafﬁc

1

For more information on the Belgian part of the North Sea, see Management Unit of the North Sea Mathematical Models website, <www.mumm.ac.be>, 20 July 2005. 2 All ﬁgures are based on the ofﬁcial port statistics for 2004.

415 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 413–428. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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– Blankenberge, a popular yachting marina with a limited draught – Ostend, a commercial, yachting and ﬁshing port with an annual cargo throughput of 7.5 million tonnes specialising in short sea ro/ro connections – Nieuwpoort, which has one of the largest marinas on the European continent Two other important Belgian sea ports are linked to the sea via the Western Scheldt estuary, which lies on the territory of the Netherlands: – Antwerp, which is situated on the upstream Belgian stretch of the river Scheldt, some 80 km from the sea. It is the second sea port of Europe – after Rotterdam but before Hamburg and Marseilles – and, for international seaborne trafﬁc, the fourth sea port in the world. In 2004, it handled more than 152 million tonnes of – very diverse – cargo and welcomed some 15,400 sea-going vessels. – Ghent, a port linked to the Dutch Western Scheldt through the GhentTerneuzen ship canal that annually handles some 25 million tonnes of cargo, mainly imports and exports generated by industrial plants in the port area. To be complete, smaller sea-going vessels can also reach the Belgian ports of Brussels and Liège, which are linked to the Scheldt via ship canals reaching far inland. To sum up, while Belgium is a relatively small maritime nation in terms of the length of its coast and the surface of its marine areas, it has one of the largest and most important sea port clusters of Europe, and its marine areas form one of the busiest crossroads of maritime trafﬁc in the world. As a consequence, its ports, rivers and roads may be expected to fulﬁl an important role as places of refuge for ships in distress.

SOME EARLY EXAMPLES OF TREATY PROVISIONS ON PLACES OF REFUGE Belgium’s history is marked by economic ups and downs that were time and again caused by the changes in the political and legal regime of the mouth of the vital river Scheldt. In the 16th century, the city of Antwerp was the largest maritime and commercial centre of Europe, with a population of more than 100,000 inhabitants. After political and religious struggles, which led to the independence of the (Northern) Netherlands, the river Scheldt was closed by the Dutch in 1585. As a result, the international trade and economic prosperity of the Southern Netherlands (present-day Belgium) declined dramatically. In 1648, the closure of the river was legally conﬁrmed in the Treaty of Münster.3

3

Treaty of Peace between Spain and the United Provinces of the Low Countries,

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In 1795, the river was opened up again by the French. In 1815, the Great Powers decided that the Southern Netherlands should join the newly established United Kingdom of the Netherlands. In 1830, Belgium seceded from this union and became an independent state. In 1839, the legal status of Belgium was laid down in the Treaty of Separation signed at London.4 The aforementioned treaties contain speciﬁc provisions on the rights of vessels in distress in internal waters. While Article XIV of the Treaty of Münster imposed the closure of the river Scheldt, Article XXIII read: ‘Without authorisation and permission of the local authority, one shall not arrive, enter of remain in the ports, bays, beaches or roads of one another’s lands with such ships and men as to cause suspicion, except where one is driven by storm, distress or perils of the sea’. The London Treaty of Separation, which secured freedom of navigation on the Scheldt between Antwerp and the sea, and which to this day forms the legal basis of the Scheldt regime, was clariﬁed by a Memorandum of the London Conference of 18 April 1839, in which the Great Powers stated: ‘La libre navigation de l’Escaut renferme, sans aucun doute, la faculté, pour tout navire, de stationner librement dans toutes les eaux de ce ﬂeuve et de ses embouchures, si les vents, les glaces ou d’autres circonstances l’exigent, et il n’est pas à prévoir qu’aucune contestation puisse s’élever sur cet objet, qui pourra au reste, être plus positivement déterminé par règlement’.5 As Professor Chircop points out in his contribution to this volume, the quoted provision of the Münster Treaty was one of the very ﬁrst conventional statements of the rights of vessels in distress. What is more, the 1648 and 1839 provisions are relevant to our times as well. First, the 1839 declaration is still applicable today and may be invoked by vessels in distress on the river Scheldt. Next, on a more theoretical level, the 1648 and 1839 examples illustrate the inter-relation between the status of ships in distress and the concept of freedom of navigation: on the one hand the right to seek shelter in a place of refuge may be considered inherent in the more general freedom of navigation (1839), but on the other hand this right even seems to persist where the general freedom of navigation does not apply or is abolished (1648). This appears to conﬁrm the present-day view that the right to a place of refuge is a general and independent rule of law the basis, scope and limitations of which are not to be sought in the general rules on freedom of navigation in the exclusive economic zone (EEZ)

Münster, 30 January 1648, Hertslet vol. II (1840), 157; C. Smit, Het vredesverdrag van Munster 30 januari 1648, (Leiden, E. J. Brill, 1948) (hereafter Treaty of Münster). 4 Treaty of Separation between Belgium and Holland, London, 19 April 1839, Moniteur belge, 21 June 1839 and Staatsblad van het Koningrijk der Nederlanden, No 26. 5 Moniteur belge, 21 June 1839.

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or the right of innocent passage through the territorial sea.6 Finally, the brief historical ﬂashback refutes the argument that it would be impossible and/or futile to draw up an international convention regime for places of refuge today: such convention provisions were already in existence centuries ago. Some bilateral conventions on commerce and navigation entered into by Belgium in the 19th century contain provisions on the treatment of vessels in distress as well. In some cases, such provisions merely lay down a non-discrimination rule.7 Other treaties regulate the involvement of the consular authorities in the direction of salvage and rescue operations or the exemption from port dues.8 Therefore, Belgian bilateral treaty practice supports the feasibility of a convention regime for places of refuge and ships in distress even further.

6

E. Van Hooydonk, “The Obligation to Offer a Place of Refuge to a Ship in Distress. A Plea for Granting a Salvage Reward to Ports and an International Convention on Ports of Refuge”, CMI Yearbook 2003, Vancouver I (Antwerp, Comité Maritime International, 2004), 403, at 420; E. Van Hooydonk, “The Obligation to Offer a Place of Refuge to a Ship in Distress. A Plea for Granting a Salvage Reward to Ports and an International Convention on Ports of Refuge”, Lloyd’s Maritime and Commercial Law Quarterly, 2004, 347, at 357. 7 See, e.g., Art. XIII of the Treaty of Commerce and Navigation between the BelgoLuxembourg Economic Union and Japan, 27 June 1924, which provides: ‘En cas de naufrage, d’avaries en mer ou de relâche forcée, chacune des Hautes Parties Contractantes devra donner aux navires de l’autre, qu’ils appartiennent à l’Etat ou à des particuliers, la même assistance et protection et les mêmes immunités que celles qui sont accordées en pareil cas aux navires nationaux. Les articles sauvés de ces vaisseaux seront exempts de tous droits de douane, à moins qu’ils n’entrent dans la consommation intérieure, auquel cas ils seront tenus de payer les droits prescrits’. The Treaty was approved by the Belgian Act of 8 January 1925 and published in the Moniteur belge of 17 June 1925. Comp. Art. 17 of the more recent Maritime Agreement between Belgium and Algeria of 17 May 1979 (approved by Belgian Act of 28 April 1981, Moniteur belge, 19 November 1982). 8 See, e.g., Art. 10 of the Treaty of Navigation and Commerce between Belgium and France, 17 November 1849, which reads: ‘Seront complétement affranchis des droits de tonnage et d’expédition dans les ports respectifs: 1° Les navires qui, entrés sur lest de quelque lieu que ce soit, en ressortiront sur lest; 2° Les navires qui, passant d’un port de l’un des deux Etats dans un ou plusieurs ports du même Etat, soit pour y déposer tout ou partie de leur cargaison, soit pour y composer ou compléter leur chargement, justiﬁeront avoir déjà acquitté ces droits; 3° Les navires qui, entrés avec chargement dans un port, soit volontairement, soit en relâche forcée, en sortiront sans avoir fait aucune opération de commerce. Ne seront pas considérés, en cas de relâche forcée, comme opérations de commerce, le débarquement et le rechargement des maechandises pour la réparation du navire; le transbordement sur un autre navire, en cas d’innavigabilité du premier, les dépenses nécessaires au ravitaillement des équipages et la vente des marchandises avariées, lorsque l’administration des douanes en aura donné l’autorisation’.

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RECENT CASES Before discussing the current legal regime of places of refuge and ships in distress in Belgium, it is useful to report on a number of recent distress and refuge situations in Belgian waters. In 1977, the burning MS ‘Attican Unity’ was put on the Dutch shore by salvors, close to the Belgian border. Entry into territorial waters was refused by both Dutch and Belgian authorities. The Dutch Supreme Court held that the ship was not in innocent passage.9 In 1992, MS ‘Long Lin’, which was damaged after a collision, applied for entry into the Dutch repair port of Flushing at the mouth of the Western Scheldt. Access was denied by Dutch authorities on the grounds that the Protection and Indemnity (P&I) Club was not willing to furnish an unlimited ﬁnancial guarantee. Entry was also denied by Belgian authorities on safety and environmental grounds. Eventually, the ship was welcomed in a French repair port, apparently under no speciﬁc conditions.10

Art. 15 of the same Treaty provides : ‘Toutes les opérations relatives au sauvetage des navires belges naufragés sur les côtes de France seront dirigées par les consuls ou viceconsuls de Belgique, et, réciproquement, les consuls ou vice-consuls français dirigeront les opérations relatives au sauvetage des navires de leur nation naufragés ou échoués sur les côtes de Belgique. L’intervention des autorités locales aura seulement lieu dans les deux pays, pour maintenir l’ordre, garantir les intérêts des sauvetaurs s’ils sont étrangers aux équipages naufragés, et assurer l’exécution des dispositions à observer pour l’entrée et la sortie des marchanduses sauvées. En l’absence et jusqu’à l’arrivée des consuls ou vice-consuls, les autorités locales devront, d’ailleurs, prendre toutes les mesures nécessaires pour la protection des individus et la conservation des effets naufragés. Il est, de plus, convenu que les marchanduses sauvées ne seront tenues à aucun droit de douane, à moins qu’elles ne soient admises à la consommation intérieure’. This Treaty was approved by Belgian Act of 11 March 1850 and published in the Moniteur belge of 13 March 1850. Comp. Art. 7 of the Treaty of Friendship, Commerce and Navigation between Belgium and Korea of 23 March 1901, approved by Belgian Act of 21 August 1901, Moniteur belge, 8 November 1901. 9 Hoge Raad, 7 Februari 1986, M/V Attican Unity, Schip en schade, 1986, 159, no. 61, Nederlandse Jurisprudentie, 1986, 1825, no. 477, with decision a quo, concl. Adv.Gen. Biegman-Hartogh, and note H. Meijers, Netherlands Yearbook of International Law, vol. XVIII (The Hague, Martinus Nijhoff, 1987), 402. 10 Raad van State (the Netherlands), 10 April 1995, M/V Long Lin, Schip en schade, 1995, 391, no. 95; see also Raad van State (the Netherlands), 10 April 1995, M/V Long Lin, Schip en schade, 1995, 394, no. 96; see also E. Van Hooydonk, “Some Remarks on Financial Securities Imposed by Public Authorities on Casualty Ships as a Condition for Entry into Ports”, in: M. Huybrechts, ed., E. Van Hooydonk and C. Dieryck, co-eds., Marine Insurance at the Turn of the Millennium, II, (Antwerp/Groningen/Oxford, Intersentia, 2000), 117–136.

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In 1993, a special tug convoy consisting of ﬂoating elements for the construction of the Erasmus bridge in Dutch Rotterdam, was to sail down the Scheldt river from Antwerp. No distress situation occurred but the right to enter the Dutch part of the river Scheldt was only granted after a ﬁnancial security was furnished to Dutch authorities. This measure was considered to be unreasonable by a Dutch court and was, moreover, protested against by the Flemish authorities on the grounds that it constituted a breach of the treaty regime of the river Scheldt, under which navigation is completely free and no charges on shipping are permitted.11 In 1999, MS ‘Ever Decent’, a container vessel, which was damaged after a collision with the passenger ship ‘Norwegian Dream’, was allowed to enter the Belgian coastal port of Zeebrugge for repairs and unloading of cargo. On 1 January 2003, MS ‘Vicky’, an oil tanker that had collided with the wreck of the ro/ro vessel ‘Tricolor’ in the French EEZ, was sheltered in the Westhinder anchorage site off the Flemish coast. Several other casualty ships have obtained access to Belgian coastal ports under special conditions (e.g., after the collision of MS ‘Samia’ and MS ‘Carina’ in 1997). From this brief selection of cases, it may be concluded that Belgian authorities follow a case-by-case approach to refuge whereby decisions are taken on purely technical grounds and (international) legal aspects do not seem to come into play at all. From the available data, then, no univocal or even relevant conclusions on the Belgian position vis-à-vis the customary law may be drawn. Whether Belgium still accepts the principle that ships in distress have the right to enter a place of refuge, is therefore an open question.

DEVOLUTION OF POWERS From a legal point of view, Belgian decision-making in cases of ships in distress has become rather complicated since the recent devolution of powers. Today, Belgium is a federal state with three autonomous regions (Flanders, Wallonia, Brussels) that have their own parliaments and governments.12 As the competence for sea ports has been transferred to the regions and as all the major sea ports are located on the territory of Flanders, Belgian seaports policy is now a Flemish seaports policy. Other regional (‘Flemish’) powers include the

11

See E. Van Hooydonk, “De geoorloofdheid van de eenzijdige Nederlandse eis tot borgstelling voor bijzondere transporten over de Schelde”, note to an injunction of the Arrondissementsrechtbank at The Hague (summary proceedings), 6 June 1994, Algemeen Juridisch Tijdschrift, 1995–1996, 63–67. 12 The sedes materiae is Art. 6 of the Special Act of 8 August 1980 on Institutional Reform, as amended.

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management of waterways and ports, pilotage, buoyage, rescue services, vessel trafﬁc services (VTS), dredging and other port-related works in marine areas and pollution in internal waters. The federal (‘Belgian’) level, for its part, has retained a number of important powers in the maritime ﬁeld as well. Commercial law including maritime law and marine insurance law, registration of vessels, safety of vessels, police regulations, the management of sea areas including marine pollution, contingency planning for marine areas and naval defence continue to be federal policy domains. It is obvious that the organisation of decision-making in distress situations touches upon several of these federal and regional ﬁelds of competence. What complicates decision-making even further is that under the Flemish Ports Decree of 2 March 1999 Flemish ports are managed by local autonomous port authorities owned by the municipalities. The harbour master’s ofﬁces form part of these port authorities. Harbour masters control the entry and departure of ships and may have – or at least be supposed to have – an important say in distress situations. It must be said, however, that in practice decisions are made promptly and smoothly. Normally, it is the Flemish Maritime Rescue and Co-ordination Centre (MRCC) based in Ostend that takes the lead and directs the actions of other public services. When it comes to establishing a speciﬁc legal framework for calamity response in maritime areas, things can become fuzzy. The creation of a Belgian and/or Flemish Coast Guard took a lot of discussions over competence issues. The implementation of the EU Vessel Trafﬁc Monitoring Directive,13 which contains a fundamental provision on places of refuge,14 gave rise to a legal debate among federal and Flemish competent authorities as well. The federal administration wished to transpose this directive in a royal decree, while the Flemish authorities were at the same time preparing a Vessel Trafﬁc Services Act containing similar provisions on places of refuge. It cannot be excluded that, in the future, claimants and other interested parties will attempt to challenge the validity of the applicable legal instruments on the grounds of a breach of constitutional rules on the devolution of powers. What is clear, is that recent and forthcoming Belgian and Flemish laws tend to leave relatively little room for interference by local port authorities and their harbour masters. Recently, the Belgian and Flemish governments have agreed upon the creation of a joint Belgo-Flemish Coast Guard, which will undoubtedly lead to a better co-ordination of decision-making in place of refuge situations and to a ﬁne-tuning of further legislative initiatives.

13

Directive 2002/59/EC of the European Parliament and the Council of 27 June 2002 establishing a Community vessel trafﬁc monitoring and information system and repealing Council Directive 93/75/EEC, OJ L 208, (5 August 2002), 10. 14 Ibid., under the heading ‘Places of Refuge’, Art. 20 provides: ‘Member States, having consulted the parties concerned, shall draw up, taking into account relevant guide-

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CURRENT AND FORTHCOMING BELGIAN LEGISLATION Current Belgian legislation contains a number of provisions that have a direct bearing on place of refuge and distress situations. For example, the Police and Navigation Regulations for the Belgian Territorial Sea, the Ports and Beaches of the Coast15 provide that no vessel may enter a harbour when it poses a threat or a risk to the harbour or the environment, and that the competent public authorities may grant an exception, imposing certain conditions if needed.16 A Royal Decree of 30 December 1923 provides that the general conditions and restrictions upon the entering by foreign warships of the Belgian Scheldt and ports are not applicable when the ship is forced to enter these waters by reason of average, storm or other cases of force majeure.17 More importantly, the recent federal (‘Belgian’) Marine Environment Protection Act18 contains speciﬁc provisions on response to situations where ships cause or threaten to cause pollution in the Belgian marine areas.19 Public authorities may require the shipowner, involved in a maritime casualty posing risks to the marine environment, to deposit a bond in the Deposit and Consignation Bank, amounting to the maximum of the possible liability limits, as established under international conventions and Belgian municipal law. The bond may be replaced by a bank guarantee delivered by a Belgian-based bank, or by a guarantee signed by a P & I Club and accepted by the state. Refusal to furnish a bond or guarantee can give rise to the detention of the ship. The act also empowers the public authorities to require a bond or a bank or P & I guarantee as soon as a pollution risk emerges. lines by IMO, plans to accommodate, in the waters under their jurisdiction, ships in distress. Such plans shall contain the necessary arrangements and procedures taking into account operational and environmental constraints, to ensure that ships in distress may immediately go to a place of refuge subject to authorisation by the competent authority. Where the Member State considers it necessary and feasible, the plans must contain arrangements for the provision of adequate means and facilities for assistance, salvage and pollution response. Plans for accommodating ships in distress shall be made available upon demand. Member States shall inform the Commission by 5 February 2004 of the measures taken in application of the ﬁrst paragraph’. 15 Royal Decree of 4 August 1981, as amended. 16 Ibid., Art. 5, § 1. 17 Cf. Y. van der Mensbrugghe, “Toegang van vreemde oorlogsschepen tot de Belgische territoriale zee en havens”, in Belgisch buitenlands beleid en internationale betrekkingen. Liber amicorum Professor Omer De Raeymaeker, (Louvain, Leuven University Press, 1978), 175–182. 18 Act of 20 January 1999. 19 Ibid., in the French version, the relevant provisions read: ‘Section 2. – Les accidents de navigation, la prévention de la pollution et l’intervention de l’autorité ayant compétence en mer

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As competences concerning port administration have been devolved to the Flemish region and as the act only applies to marine areas, not internal waters, the act does not contain express provisions on the right for vessels in distress to enter ports. However, it does grant powers to federal public services to oblige a vessel to enter a port of refuge. Since it does not regulate the actual granting of

Art. 21. § 1er. Le capitaine d’un navire qui est impliqué dans un accident de navigation dans les espaces marins doit, dans le plus bref délai, en informer l’instance désignée par le Roi, conformément aux modalités prévues en vertu de l’article 11 de la loi du 6 avril 1995 concernant la prévention de la pollution de la mer par des navires. § 2. Le capitaine est tenu de fournir sur le champ toutes les informations concernant l’accident et, sur demande, toutes les informations concernant les mesures en rapport avec l’accident qui ont déjà été prises par le navire. § 3. L’obligation d’information ne s’applique pas aux navires de guerre, aux navires utilisés comme navires auxiliaires et aux autres navires appartenant à un Etat ou exploité par cet Etat, qui les utilise exclusivement à des ﬁns non commerciales. Pour ces navires, la réglementation interne reste d’application. Art. 22. § 1er. Si l’autorité ayant compétence en mer est d’avis, lors d’un accident de navigation, que les mesures prises par le capitaine ou le propriétaire du navire n’évitent pas, ne réduisent que de façon insufﬁsante ou n’arrêtent pas la pollution ou le risque de pollution, elle peut donner des instructions au capitaine, au propriétaire du navire ou à ceux qui prêtent assistance, aﬁn de prévenir, de réduire ou d’arrêter la pollution ou le risque de pollution causé par l’accident. § 2. Les instructions données au capitaine ou propriétaire du navire peuvent avoir trait: (i) à la présence du navire et des biens qui sont à son bord à un endroit déterminé ou dans une zone déterminée; (ii) au déplacement du navire et des biens qui sont à son bord; (iii) à la prestation d’assistance au navire. § 3. Les instructions à ceux qui prêtent assistance au navire ne peuvent impliquer l’interdiction de la mise en oeuvre de l’assistance convenue ou de la continuation de l’assistance entamée. Art. 23. § 1er. Si les instructions données en exécution de l’article 22 de la présente loi ne réussissent pas à prévenir, à réduire à un degré sufﬁsant ou à arrêter la pollution causée par l’accident, l’autorité peut prendre d’ofﬁce toute mesure nécessaire aﬁn de prévenir, de réduire ou d’arrêter les conséquences dommageables de l’accident. Ces mesures peuvent notamment avoir pour objet: (i) de faire une enquête sur la situation à bord du navire et sur la nature et l’état des biens qui se trouvent à son bord; (ii) de ramener le navire dans un port, si par cette mesure les conséquences dommageables peuvent être mieux prévenues, réduites ou arrêtées. § 2. Les mesures doivent être proportionnelles aux conséquences dommageables ou potentiellement dommageables de l’accident de navigation et ne peuvent excéder ce qui est raisonnablement nécessaire pour éviter, réduire ou arrêter ces conséquences dommageables. Art. 24. § 1er. L’autorité peut exiger que le propriétaire d’un navire, qui est impliqué

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entrance to that port by Flemish of local authorities, the act seems rather handicapped. In theory, it cannot be excluded that a federal authority directs a stricken vessel to a given place of refuge and that the competent Flemish authority thereupon refuses access to that very place. As noted above, in practice things appear to go rather smoothly, and the competent federal and Flemish services continuously increase their co-operation and co-ordination efforts. Interestingly, entry into a Belgian place of refuge has so far never been made dependent upon the provision of a ﬁnancial security. Local port tariffs set out exemptions or reductions of port dues for ships having entered the port in a distress situation or needing repairs. These tariffs are made by local port authorities.20 As we have explained before,21 the treaty regime of the river Scheldt guarantees freedom of navigation including the right to stop if the circumstances so require – which may be held to apply to ships in distress as well. At the time of writing, negotiations were going on between the Dutch and Flemish governments in order to establish a common structure for the management of trafﬁc on the Scheldt. This would enable a newly created joint Flemish-Dutch nautical authority to decide on distress situations. However, the envisaged treaty is not likely to contain speciﬁc provisions on places of refuge. Finally, the Belgian North Sea Contingency Plan was, in 2003, complemented by a Chapter 7 on ships in distress dealing with the designation of places of refuge. The chapter expressly refers to the EU Trafﬁc Monitoring Directive. It designates the following places of refuge: 1. The Westhinder Anchorage off the coast, which offers limited shelter; 2. As ports of refuge:

dans un accident de navigation comportant des risques de pollution des espaces marins, verse un cautionnement à la Caisse de Dépots et Consignations, à concurrence du maximum des limites de responsabilité éventuelles, conformément aux conventions internationales et à la loi belge. § 2. La consignation de cette somme peut, sans occasionner de frais à l’Etat, être remplacée par la constitution d’une garantie bancaire accordée par une banque établie en Belgique ou d’une garantie signée par un « Protection and Indemnité Club » et déclarée recevable par l’autorité. § 3. L’autorité peut retenir le navire en cas de refus de cautionnement ou de constitution d’une garantie bancaire. § 4. Si le navire a coulé, le tribunal compétent peut être requis de saisir d’autres navires du propriétaire dans les ports belges pour contraindre au cautionnement ou à la constitution de la garantie bancaire jusqu’à ce qu’il soit satisfait au cautionnement ou à la garantie’. 20 See, e.g., Art. 7.3.1 of the Antwerp Tariff Regulations for Seagoing Vessels, which grants a reduction of the rate of tonnage dues to seagoing vessels which call at the port ‘by reason of maritime danger and which are not laid up in the port’. 21 London Treaty of Separation, supra note 4, para 2.

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a. Ostend (maximum length 160 m, maximum draught 8 m) b. Zeebrugge (maximum draught 12,80 m) on condition that a suited berth is available, authorisation is given by the harbour master and a ‘sufﬁcient’ ﬁnancial security is provided. 3. As nearby dry docks: Flushing (Holland) and Dunkirk (France).22

22

In French, the full text reads: ‘7. Plan pour l’accueil de navires en détresse dans les espaces marins sous juridiction de la Belgique 7.1. Recherche et sauvetage (procédures et traitement) – PUI Mer du Nord 7.2. Lieux de refuge L’article 20 de la Directive 2002/59/CE du Parlement européen et du Conseil du 27 juin 2002 relative à la mise en place d’un système communautaire de suivi du traﬁc des navires et d’information, et abrogeant la directive 93/75/CEE du Conseil stipule entre autres que l’état côtier doit prévoir des lieux de refuge pour les navires en détresse. 7.2.1. Lieux d’ancrage Vu l’intensité du traﬁc maritime dans l’espace marin belge relativement petit de 3450 km2 aux nombreuses activités commerciales (pêche, extraction de sable, exploitation de gravier, câbles de communication, gazoducs, oléoducs, . . .) et les zones marines protégées et délimitées, le seul endroit possible dans l’espace marin que nous pouvons proposer comme lieu de refuge est la zone d’ancrage Westhinder dont les coordonnées sont: Les coordonnées en ED50 : 51°24',00 N–02°33',40 E 51°26',00 N–02°35',00 E 51°26',00 N–02°40',00 E 51°24',00 N–02°40',00 E Les coordonnées exprimées en WGS84: 51°23',95 N–02°33',32 E 51°25',95 N–02°34',92 E 51°25',95 N–02°39',92 E 51°23',95 N – 02°39',92 E Ce lieu d’ancrage est situé en dehors des routes maritimes très fréquentées, tout en ayant une position centrale par rapport aux ports côtiers et aux routes maritimes. Il s’agit d’une zone surveillée: si elle n’offre toutefois qu’une protection restreinte contre les conditions atmosphériques, elle ne protège nullement contre une pollution éventuelle de l’espace marin. Le but est de considérer ce lieu d’ancrage qui est située en dehors de la mer territoriale mais la jouxte quand même, comme une zone maritime territoriale au sens de l’article 12 de la convention UNCLOS III. La Belgique demande de pouvoir considérer cette zone d’ancrage comme une partie de sa mer territoriale. En cas de nécessité, on peut avoir recours à deux zones d’ancrage d’urgence (qui ne sont pas indiquées comme telles sur la carte). Elles ne sont donc utilisables qu’en cas d’urgence et lorsque la zone d’ancrage Westhinder ne constitue pas une option. Le Service de traﬁc maritime du MRCC doit donner son autorisation expresse pour y ancrer. Il s’agit d’une zone située au sud de la bouée AZ et au nord de la bouée NE Akkaert. Les navires en détresse suivent les instructions données par le MRCC ou le Service de traﬁc maritime qui les amènera à un lieu d’ancrage où la situation d’urgence pourra être

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The North Sea Contingency Plan conﬁrms the co-ordinating role of the Flemish MRCC. Only recently, it was ofﬁcially published as an Annex to a Ministerial Order of 19 April 2005.23 As a result, the list of Belgian places of refuge – at

traitée de manière optimale; Le cas échéant, les navires y seront préparés pour être accueillis dans un port de refuge ou une cale sèche. Si les circonstances l’exigent, le Gouverneur pourra indiquer un autre lieu de refuge. Les navires qui souhaitent faire usage de ce lieu d’ancrage pour des réparations doivent prendre contact avec le Service de traﬁc maritime. 7.2.2. Ports de refuge La côte belge dispose de 2 ports qui entrent en considération pour accueillir des navires en détresse ou permettre des réparations ne nécessitant pas de cale sèche. Il s’agit du port d’Ostende et du port de Bruges-Zeebruges. Caractéristiques de ces deux ports: Ostende: Le port d’Ostende peut être utilisé comme port de refuge en tenant compte des éléments suivants : – Le port d’Ostende est un port à marée, situé à 51°14' N / 02°56' E; – Le port est accessible aux navires mesurant maximum 160 mètres de long, via un goulet dont la largeur entre les têtes des deux môles est de 178 mètres et la profondeur -8.00 mètres (H); – Le port de commerce offre, en outre, les possibilités suivantes: – 5 appontements Ro-Ro avec une profondeur de -8.00 mètres (H) – des quais General Cargo avec une profondeur de -8.00 mètres (H). Le port d’Ostende n’offre toutefois pas de possibilités pour le traitement et le stockage de produits liquides. Le quai General Cargo est en outre équipé d’une grue de quai d’une capacité de 8 tonnes. Un remorqueur équipé d’un Bollard Pull de 30 tonnes, est sur place. Bruges – Zeebruges: Le port de Bruges – Zeebruges sert de deuxième port de refuge, à condition que: – les navires qui sont déjà en route vers le port d’Ostende, de Gand ou d’Anvers puissent être accueillis par ces ports; – que le tirant d’eau ne dépasse pas 12,80 mètres, comme proposé par le service de pilotage et à condition de ne pas devoir disposer d’une cale sèche; – que le navire en détresse reçoive du capitaine de port-commandant (ou de son délégué) (6) l’autorisation d’entrer dans le port, et uniquement: – si un mouillage approprié est disponible dans l’avant-port ou l’arrière-port; – si le capitaine de port-commandant (ou son délégué) reçoit un avis positif d’un expert de la Commission Nautique, après expertise à bord du navire en détresse; – si la compagnie portuaire reçoit par écrit une caution ﬁnancière sufﬁsante à titre de garantie du P&I – Club du navire en détresse. 7.3. Cales sèches En ce qui concerne l’espace marin belge, les cales sèches les plus proches sont celles de Vlissingen (Flessingue) aux Pays-Bas et de Dunkerque en France’. 23 Moniteur belge, 25 May 2005.

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least those situated along the coast – is a public document the contents of which are accessible to the general public, a fact which strikingly contrasts with the approach of some other EU Member States which regard their list as a strictly conﬁdential document. The question arises whether the existing legal framework discussed above is appropriate. In this author’s view, there still is legal uncertainty as to the authority which is competent to grant or deny access. Moreover, the conditions of entry (especially those related to ﬁnancial securities) should not (as is the case now) be laid down in a mere contingency plan. Next, the legal basis of the North Sea contingency plan under domestic law is rather unclear. Further, some of the abovementioned differences between the conditions of entry into the designated ports are hard to comprehend. Finally, to a certain extent the role of harbour masters seems to have been overlooked in the Contingency Plan. At the time of writing, the Flemish administration was preparing a draft Vessel Trafﬁc Services Act. This act would create a legal basis for the activities of the existing VTS and MRCC. Moreover, it would ensure a proper implementation of the EU Trafﬁc Monitoring Directive and the IMO Guidelines on VTS. A separate article would expressly provide that the Flemish VTS is the competent authority to grant entry to vessels in distress and that VTS must take into account relevant plans, IMO guidelines and implementing decrees issued by the Flemish Government. Further, VTS may impose ‘conditions’ and it is stated that its decision does not interfere with the authority and responsibility of master and pilot. As noted above, the federal government is preparing regulations for the implementation of the EU Trafﬁc Monitoring Directive as well. As a consequence, Belgian legislation pertaining to ships in distress and places of refuge may be expected to receive a thorough revision and amelioration very shortly. In addition to that, a joint Belgo-Flemish Coast Guard will be established in the near future, which will undoubtedly contribute to a better co-operation of various governmental agencies in distress situations.

CONCLUSION The above overview of the Belgian experience with places of refuge and ships in distress leads to a number of conclusions that may be relevant to other countries as well. First, the Scheldt regime shows an interesting historical link between the legal position of ships in distress and freedom of navigation. Next, the approach of Belgian and Flemish authorities towards place of refuge situations has, to date, hardly been inﬂuenced by legal considerations. The same may well be the case in other countries and perhaps that is a good reason for lawyers to take a more modest position in the on-going policy debate. Thirdly, the Belgian experience conﬁrms that the devolution of maritime powers in a federal state may lead to legal uncertainty as to the competence of authorities involved, as well as to gaps in the statutory regime. Also, it may

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render constitutionally difﬁcult, if not impossible, any EU plan to impose the establishment of a unique decision-making centre for each Member State (such as the famous SOSREP in the UK).24 To the extent, however, that federal and regional governments and agencies are able to enter into co-operation agreements and to mutually ﬁne-tune their legislative initiatives (as seems to be the case in Belgium today), a division of powers under a federal constitution should not endanger the efﬁciency of day-to-day operations and the deployment of available resources. Fourthly, in Belgian law the role of port authorities is not clearly deﬁned, a fact which does not appear to be particular to Belgium either. Finally, as with many other countries, Belgium has so far not made entry into a place of refuge dependent upon the provision of a ﬁnancial security.

24

For a description of the role of the SOSREP, see Chapter 16.

Chapter 16 The Experience of the United Kingdom Toby Stone* INTRODUCTION The United Kingdom relies on maritime trade, as indeed does much of Europe to fuel its economy. The consequences are obvious: the trafﬁc lanes around the United Kingdom, in particular the Dover Straits, are some of the busiest in the world (see Figure 1). With this comes a risk of shipping casualties. Shipping casualties are, however, decreasing.1 The Advisory Committee on Protection of the Sea (ACOPS) statistics clearly indicate a downward trend in accidental or

* The views expressed in this chapter are the views of the United Kingdom Maritime and Coastguard Agency (MCA). Some of this chapter has been reproduced (with permission) from the MCA website. 1 See, for example, Maritime and Coastguard Agency, Annual Report and Accounts 2003–2004, <www.mcga.gov.uk/c4mca/mcga-the_mca/annual-report-2003–4/annualreport-2003–4–outcomes.htm>, 7 July 2005; and International Maritime Organization, Casualty Statistics and Investigations, Very serious and serious casualties for the year 2003 (London, IMO, 23 February 2005), FSI.3/Circ.6, Annexes 1 and 2.

429 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 429–453. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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Source: (ETV project Safetec report)

deliberate pollution discharges from vessels or offshore installations into the marine environment.2 Even more encouraging are the worldwide statistics from the salvage industry which again indicate a downward trend.3 This is of course very good news for the environment, not so good for the salvors. This reduction is in part due to prevention strategies. Through the robust control mechanisms that exist within the Maritime and Coastguard Agency (MCA) the majority of marine incidents in UK waters are resolved at an early stage. The four government-sponsored emergency towing 2

The Advisory Committee on Protection of the Sea (ACOPS), Annual Report 2002, <www.mcga.gov.uk/c4mca/mcga-environmental/mcga-dops_cp_environmentalcounter-pollution.htm>, 29 July 2005. 3 See International Salvage Union, “New demands on the salvor’s skill”, <www.marine-salvage.com/overview.htm#1.1>, 7 July 2005.

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vessels (ETV) positioned at strategic locations in the UK are the frontline resources and are perhaps the most potent example of the Maritime and Coastguard Agency’s prevention strategy.4 Another key area in this prevention strategy is a clear and decisive voice with regards to places of refuge. Places of refuge are not new. There have been many occasions where a place of refuge has been granted and conversely refused in United Kingdom waters. A critical issue when providing a place of refuge is the mechanism to allow such a decision to be taken without political interference. Merely having a detailed inventory of places of refuge is not enough. Such an inventory must be backed up by a clearly deﬁned command and control arrangement. The UK has such a system, developed over many years in response to major incidents. This chapter will explore the UK policy and system in regards to places of refuge using examples of incidents in UK waters. The vision of the MCA is very simple, ‘Safer Lives, Safer Ships, Cleaner Seas’.5 Dealing with a place of refuge in the UK must embody this vision.

BACKGROUND HISTORY TO THE DEVELOPMENT OF THE UK RESPONSE SYSTEM The UK has been unfortunate in experiencing and having to respond to three of the top twenty marine oil spills in the world (as categorised by the International Tanker Owners Pollution Federation Limited – ITOPF) (see Figure 2).6 The UK is therefore well rehearsed in dealing with marine disasters that have had a signiﬁcant impact on the coastal and marine environment. While each incident brings its own particular problems, the UK has learned from each incident and implemented many of the recommendations stemming from subsequent enquiries and reports. The ﬁrst time the attention of the world turned to the UK because of a major marine pollution incident was 1967. The ‘Torrey Canyon’ ran aground between 4

See, MCA, “Review of Emergency Towing Vessel Provision Around the Coast of the UK”, <www.mcga.gov.uk/c4mca/mcga-environmental/mcga-dops_cp_environmental-counter-pollution/mcga-dops_cp_review_of_etvp.htm>, 7 July 2005; and “The United Kingdoms Response to Salvage and Marine Pollution: Emergency Towing Vessels (ETVs)”, <www.mcga.gov.uk/c4mca/mcga-environmental/mcga-dops_cp_environmental-counter-pollution/mcga-dops_cp_sosrep_role/mcga_dops_cp_ncp_+_uk_ response_to_salvage/mcga-dops_cp_structure_of_maritime_incidents.htm>, 7 July 2005. 5 For an indication of how the vision works in action, see the MCA Annual Report 2003–2004 sections entitled, ‘Safer Lives’, ‘Safer Ships’, and ‘Cleaner Seas’, <www.mcga.gov.uk/c4mca/mcga-the_mca/annual-report-2003–4.htm>, 7 July 2005. 6 Selected major oil spills (courtesy of ITOPF, London), <www.itopf.com/stats.html>, 7 July 2005.

Source: (Courtesy of ITOPF, London)

Figure 2: Selected major oil spills

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the Isles of Scilly and Land’s End (the southwestern corner of the UK) while carrying 117,000 tonnes of Kuwait crude oil.7 After a failed salvage attempt, the vessel was eventually bombed to burn off the remaining 20,000 tonnes of crude oil. The impacts of this grounding were unparalleled in UK maritime history. The UK had no national contingency plan, no national stockpiles of pollution-ﬁghting equipment, no emergency towing vessels, and no policy to deal with such a disaster. In effect no prevention, preparedness or response strategies were in place. The UK parliamentary response to this incident was to enact the Prevention of Oil Pollution Act of 19718 and associated intervention powers.9 These are now enshrined in the Merchant Shipping Act 199510 and Marine Safety Act 2003.11 The incident also provided the catalyst for creation of liability and compensation regimes.12 Since it was concluded that human error had caused the accident,13 it was considered unlikely to happen again. The incident faded from the public conscience. In the background, however, the world, in particular the International Maritime Organization (IMO), began to question the need to put measures in place to prevent oil pollution from ships, along with issues of liability. The Torrey Canyon incident was the catalyst for the adoption of the International Convention for the Prevention of Pollution from Ships, 1973 (MARPOL)14 and a host of initiatives linked to the protection of the marine environment.15 It was the UK’s turn again in 1993 when the ‘M/V Braer’ went onto rocks at Garth Ness, at the southern tip of the Shetland Islands.16 She was fully laden

7

“1967: Bombs Rain Down on Torrey Canyon”, BBC, 29 March 1967 (hereafter BBC, Torrey Canyon), , 7 July 2005. 8 Prevention of Oil Pollution Act of 1971, (UK) 1971, c. 60. 9 See, “Current Intervention Powers”, <www.dft.gov.uk/stellent/groups/dft_shipping/documents/page/dft_shipping_505250–04.hcsp>, 7 July 2005. 10 Merchant Shipping Act 1995, (UK) 1996, c. 20. 11 Marine Safety Act 2003, (UK) 2003, c. 16. 12 Liability and compensation regimes are set out on the International Oil Pollution Compensation Fund website, <www.iopcfund.org>, 7 July 2005. 13 BBC Torrey Canyon, supra note 7. 14 International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, 1340 U.N.T.S. 184, as amended by Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978, 1340 U.N.T.S. 61, Annex 1, Reg. 11 (hereafter MARPOL). 15 E. Gold, Maritime Transport: The Evolution of International Marine Policy and Shipping Law (Lexington, MA, Lexington Books, 1981), 286–289. 16 “1993: Oil Tanker Runs Aground off Shetland Islands”, BBC, 5 January 1993, , 7 July 2005.

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with 84,700 tonnes of Norwegian Gullfaks crude and some 1,600 tonnes of heavy fuel oil bunkers. The weather was atrocious, with storm force winds and mountainous seas. All the makings of a major economic and ecological disaster for the local community and environment were in place as the vessel started to break up. However, Gullfaks is a very light and volatile crude with low asphaltene content which the high winds and exceptional seas were largely able to disperse. The environmental consequences were still serious.17 On this occasion, however, the UK had a National Contingency Plan and associated resources in place. Shortly after the ‘Braer’ incident, Lord Donaldson of Lymington was appointed chairman of the Inquiry into the Prevention of Pollution from Merchant Shipping. Its ﬁnal report, commonly referred to as Safer Ships, Cleaner Seas, detailed no less than 103 recommendations to government encompassing all aspects of global shipping.18 The report concluded that whilst much work was already being done, there was a pressing need for the UK to take new initiatives locally, regionally, nationally and internationally. The UK response to such incidents was adapted and updated in light of some of the recommendations in Safer Ships and Cleaner Seas19 in conjunction with the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 (OPRC Convention).20 Although the UK had yet to accede to the OPRC Convention, it had many of the requirements in place, for example, a National Contingency Plan (see below for a further discussion of the Plan). The report led directly to the establishment of ETVs in the UK.21 In February 1996, the ‘Sea Empress’ grounded on the ﬁnal approaches to the port entrance, with a pilot on board, in ﬁne and clear weather.22 On board were 130,018 tonnes of Forties light crude oil, which immediately began to escape

17

World Wildlife Fund and the Wildlife Trusts, “Ships of Shame or Vessels of Virtue?”, Marine Update, April 1999, <www.wwf.org.uk/ﬁlelibrary/pdf/mu_38.pdf>, 7 July 2005. 18 Lord Donaldson, Safer Ships, Cleaner Seas Report of Lord Donaldson’s Inquiry into the Prevention of Pollution from Merchant Shipping (London, HMSO, 1994), HMSO Cm2560 (hereafter Safer Ships, Cleaner Seas). 19 Ibid. 20 International Convention on Oil Pollution Preparedness, Response and Cooperation, London, 13 November 1990 (hereafter OPRC), 30 I.L.M. 733. 21 Maritime and Coastguard Agency, Review of Emergency Towing Vessel Provision Around the Coast of the UK, <www.mcga.gov.uk/c4mca/mcga-environmental/mcgadops_cp_environmental-counter-pollution/mcga-dops_cp_review_of_etvp.htm>, 7 July 2005. 22 See, Marine Pollution Control Unit, The Sea Empress Incident, A Report By the Marine Pollution Control Unit (Southampton, The Coastguard Agency, December 1996); The Report of the Chief Inspector of Marine Accidents into the grounding and subsequent salvage of the tanker SEA EMPRESS at Milford Haven between 15 and 21

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from the ship, threatening to pollute UK waters and coastline. For several days efforts to salvage the tanker and prevent massive oil pollution unfolded before the cameras of the world. Lord Donaldson conducted a further Review of Salvage and Intervention and their Command and Control following this incident.23 It was generally agreed there was a textbook clean up operation of the pollution both at sea and on the shoreline. However, the report found major deﬁciencies in the command and control structures. The report and its recommendations came at an opportune moment. The Coastguard Agency and the Marine Safety Agency were being amalgamated to form the Maritime and Coastguard Agency (MCA) with a mandate to address all aspects of marine regulation and incident response. The maritime response structure for the UK was altered accordingly to reﬂect some of the 26 recommendations made in Lord Donaldson’s report. Lord Donaldson identiﬁed four key areas of change in the command and control structure for responding to marine pollution incidents in UK waters: 1. Involving ministers in operational decision-making is not a practical option. This led to the creation of the Secretary of State’s Representative for Maritime Salvage and Intervention (SOSREP). 2. The MCA Procedural Manual clearly identiﬁes the trigger point for action when there is a marine-based threat of signiﬁcant pollution in the UK pollution control zone, territorial waters or coastline.24 3. MCA ofﬁcers are given a much larger part in response operations to threats of pollution than in the past. This led to the creation of four posts in the regions of the MCA, Counter Pollution and Salvage Ofﬁcers. 4. Response to the threat of signiﬁcant pollution from or involving an offshore installation is comparable to that of a shipping casualty. This led to the creation of the parallel SOSREP function for the offshore industry. The Offshore Installations (Emergency Pollution Control) Regulations 2002 bring this into force.25 February 1996, (Southampton, Marine Accident Investigation Branch, Department of Transport, 1997), <www.archive.ofﬁcial-documents.co.uk/document/dot/seaemp/ seaemp.htm>, 7 July 2005. 23 Lord Donaldson, Report of Lord Donaldson’s Review of Salvage and Intervention and their Command and Control (March 1999), <www.dft.gov.uk/stellent/groups/ dft_shipping/documents/page/dft_shipping_505250.hcsp>, 7 July 2005. 24 Statutory Instrument 1996 No. 2128, The Merchant Shipping (Prevention of Pollution) (Limits) Regulations 1996, in force 5 September 1996, <www.opsi.gov.uk/si/ si1996/Uksi_19962128_en_1.htm>, 7 July 2005; Statutory Instrument 1997 No. 506, The Merchant Shipping (Prevention of Pollution) (Limits) Regulations 1997, in force 20 March 1997, <www.opsi.gov.uk/si/si1997/97050601.htm>, 7 July 2005. 25 Statutory Instrument 2002 No. 1861, The Offshore Installations (Emergency Pollution Control) Regulations 2002, in force 17 July 2002, <www.opsi.gov.uk/si/ si2002/20021861.htm>, 7 July 2005.

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The roles of SOSREP, MCA and its ofﬁcers are more fully explained in the discussion of the UK’s places of refuge system below. Donaldson went further by referencing four main theatres of activity (discussed below). These response arrangements are explained in the National Contingency Plan (NCP).26 The NCP was introduced in January 2000. The purpose of this plan is to ensure that there is a timely, measured and effective response to marine incidents. The owners and masters of ships and the operators of offshore installations bear the primary responsibility for ensuring that they do not pollute the sea. Harbour authorities are likewise responsible for ensuring that their ports operate in a manner that avoids marine pollution, and for responding to incidents within their limits. However, ships, offshore installations and harbour authorities may face problems that exceed the response capabilities that they can reasonably maintain (especially in the provision of counter pollution equipment). Similarly, coastal local authorities may face incidents that require equipment or expertise beyond their capabilities. Therefore, the MCA may need to use national assets in the response to a marine pollution incident. The NCP sets out the circumstances under which MCA deploys the UK’s national assets to respond to a marine pollution incident to protect the overriding public interest. It also describes how MCA manages these resources. The NCP also highlights the resources the central government has at its disposal. Such resources must clearly dovetail with local and regional plans of all the ports and harbours in the United Kingdom. All such plans are encompassed by OPRC requirements. One key to preparedness includes the 180 ports and harbours that have approved OPRC Oil Spill Contingency Plans. These ports are considered to be at the highest to medium risk for a pollution incident. Separate offshore plans encompass oil and gas exploration, development and production installations. The NCP highlights the four main theatres of activity in responding to a major marine incident: 1. Search and Rescue: This is co-ordinated by Her Majesty’s Coastguard (HM Coastguard) at one of nineteen rescue centres throughout the UK. HM Coastguard is a part of the MCA. 2. Salvage: When a marine casualty occurs, where appropriate, the UK Government encourages a contract, usually Lloyds Open Form, between the owners and a reputable salvor.

26 Maritime and Coastguard Agency, National Contingency Plan for Marine Pollution from Shipping and Offshore Installations (Southampton, Maritime and Coastguard Agency, 2000), <www.mcga.gov.uk/c4mca/mcga-environmental/mcgadops_cp_environmental-counter-pollution.htm>, 7 July 2005.

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The SOSREP has ultimate control of the salvage operation, usually through the Salvage Control Unit (SCU). If the MCA are aware of an unfolding incident then it is in effect giving tacit approval to any salvage operation. It is therefore of paramount importance that adequate notiﬁcation and brieﬁng is being given to SOSREP. 3. At Sea Clean Up. A Marine Response Center (MRC) set up in the port area or nearest suitable MCA premises is responsible for directing and co-ordinating a national level response to a marine pollution incident. If the incident is in a statutory harbour jurisdiction, the control of the MRC is initially by the harbour authority. As the incident grows, the MCA takes control as required. The MRC deals with all of the issues concerned with marine pollution including, if appropriate, the use of dispersants. 4. Shoreline Clean Up. Preventing and mitigating pollution of the shoreline is controlled by a Shoreline Response Centre (SRC) and managed by local authorities. MCA supports and provides advice to the local authorities in the establishment and running of the SRC. An Environment Group, comprised of liaison ofﬁcers from relevant government units and departments, advises the SCU, MRC and SRC on environmental aspects and impacts of response operations. Standing environment groups are established around the UK. The chair is nominated at the start of an incident. The Salvage Control Unit is also where issues like a place of refuge would be considered. The UK has a very clear policy on places of refuge. This policy is explored in greater detail below.

UK POLICY ON PLACES OF REFUGE In the United Kingdom, the legal basis for providing a ship in need of assistance with a place of refuge is the Merchant Shipping Act 1995 27 (as amended by the Merchant Shipping and the Maritime Security Act 1997).28 In addition the Marine Safety Act 2003 encompasses the intervention powers linked to pollution prevention and safety.29 The UK has always had a robust policy on places of refuge. What is different today is the raised political awareness of the subject after some very high

27 28 29

Merchant Shipping Act 1995, supra note 10. Merchant Shipping and Maritime Security Act 1997, (U.K.) 1997, c. 39. Marine Safety Act 2003, supra note11.

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proﬁle incidents like the ‘Castor’30 and ‘Prestige’.31 The recently issued IMO Resolution A.949(23) Guidelines on Places of Refuge for Ships in Need of Assistance32 was brokered at about the same time as the EU Directive 2002/59/EC which required states to draw up ‘plans to accommodate ships in distress’.33 Furthermore, EC Council conclusion of 6 December 2002 urged Member States to establish as early as possible ‘plans for the identiﬁcation of places of refuge for ships in distress’.34 Note that both the Directive and Council Decision place emphasis on ‘plans’. This is a sensitive issue and depends on the interpretation of plans and whether this extends to an inventory of ports, harbours, anchorages, bays, and inlets, and detailed information about each, that could be used as places of refuge. Some Member States have included an inventory in their submission to the EC. Other member states, including the UK, have only included the selection criteria used to compile their inventory of potential places of refuge. Very recently, however, the UK Government, in support of the Freedom of Information Act 200535 published a non-exhaustive inventory of ports and anchorages that may be suitable places of refuge on the MCA website.36 Also note the reference to ‘a ship in distress’ in the EC Directive and ‘a ship in need of assistance’ in the IMO Guidelines. Although both initiatives were 30 For a review of the salvage of the ‘Castor’, see Tsavliris Salvage, <www. tsavliris.com/htmls/services/salvagedetail.asp?sid=111>, 7 July 2005. See also, “Overall progress of the IMO work programme”, Speech given by Mr. W.A. O’Neil, SecretaryGeneral of IMO, La XX Journée Nationale de la Mer, L’Institut français de la Mer, Paris, 8 February 2001, <www.imo.org/Newsroom/mainframe.asp?topic_id=82&doc_id=745>, 7 July 2005. 31 For a description of the ‘Prestige’ incident, see <www.le-cedre.fr/index_gb.html>, 7 July 2005. 32 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/Res.949, 5 March 2004. 33 Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 Establishing a Community Vessel Trafﬁc Monitoring and Information System and Repealing Council Directive 93/75/EEC, Ofﬁcial Journal, L208 (5 August 2002), 10–27. 34 For a report on the EC Transport conclusions of 6 December 2002, see, “Transport Council Rich in Results”, ESPO News Plus+, Volume 8.22, at 1, <www.espo.be/news/ 2002/News-plus/Plus%208.22.pdf>, 7 July 2005. 35 Freedom of Information Act 2000, (UK), 2000, c. 36 (entered into force 1 January 2005). 36 UK Places of Refuge Inventory, <www.mcga.gov.uk/c4mca/mcga-environmental/ mcga-dops_cp_environmental-counter-pollution/mcga-dops_cp_sosrep_role/internet-_ dops-_counterpollution-places_of_refuge__/dops_-_sosrep_-_ports_and_anchorages_hqnewpage-1003083.htm>, 7 July 2005.

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being considered simultaneously, the latter had more time for discussion and reﬁnement at IMO working groups and sub-groups. The outcome is a slightly better deﬁnition of the problems associated with a ship in need of assistance and a place of refuge, this is reﬂected in the content and title of the IMO resolution. When a ship is in need of assistance in UK waters, the government body that takes responsibility in the ﬁrst instance is the MCA. The MCA assesses the level of risk associated with the incident, and decides whether the incident warrants a local, regional or national response. Where a threat of signiﬁcant pollution justiﬁes a regional or national response, SOSREP takes control. SOSREP oversees and, if necessary, intervenes and exercises ultimate control, acting in the overriding interest of the UK in salvage operations within UK waters involving ships and offshore installations. The key word here is ‘control’, which is very different from ‘command’. Mariners may be comfortable with the difference between command and control. For the non-mariners reading this book I can offer the following: Country men of England Who live at home with ease, And little think what dangers Are incident o’ th’ seas 37

The analogy Lord Donaldson offered was the situation where you may be driving your car, you are in command of your car; the trafﬁc light, policeman or trafﬁc warden are in control of your vehicle. Considering and granting a place of refuge for a ship in need of assistance needs ultimate control by the central government. SOSREP and MCA consider whether it is appropriate to bring a vessel, which is in need of assistance, into a place of refuge, taking into account the relevant IMO Guidelines. Whereas each decision is taken on the basis of the speciﬁc circumstances of the incident, it is normal practice for the UK to bring such vessels into a place of refuge. The MCA has a strong track record in facilitating and granting a place of refuge. The choice of a location as a place of refuge is driven by event-speciﬁc data such as the weather, the geographical whereabouts of the incident and the type of threat posed by the vessel and its cargo. It must be emphasised the overriding considerations are those of safety and risk to human life, both of those on board the vessel and of those who may ﬁnd themselves near enough to be affected by it. Where possible, it is preferable for incidents to be dealt with at sea. However, the search for calmer waters may inevitably require a casualty to move into a sheltered bay, port or roadstead. The decision to grant a place of refuge is thus a ﬁne balancing act.

37

“Sailors For My Money”, Martin Parker, d. 1656.

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UK policy is very clear in regarding everywhere as being a potential place or port of refuge. Some places have more to offer than others do but, in extremis, every place may have something to offer. There are certain aspects of any place that can enhance its attractiveness as a place of refuge such as: • • • •

the degree of shelter from prevailing weather the absence of hazards to navigation he presence of gently shelving, soft sand, beaches the availability of handling facilities such as wharves, jetties, tugs and repair services

Similarly there can be factors that preclude such use. Some of the most environmentally sensitive areas of the United Kingdom are also the perfect location for marine berthing facilities and make very good places of refuge. For example, Esso Fawley in West Solent, Southampton waters, has several environmental designations, including Candidate Special Area of Conservation, Site of Special Scientiﬁc Interest (SSSI) and National Park, yet it makes it a good place of refuge mainly due to the deepwater location in a sheltered area with very good support industries. Marine Environment High Risk Areas (MEHRA) were identiﬁed in the UK after one of Lord Donaldson’s recommendations from Safer Ships, Cleaner Seas. However, even a MEHRA could be considered as a place of refuge. Similarly the designation of the Western European Particularly Sensitive Sea Area by IMO38 will not necessarily restrict access for a ship in need of assistance requiring a place of refuge. In the UK, there is no pre-conceived ranking of places of refuge. This is because of the transient and varied nature of each incident and the time parameters affecting the value of a location as a place of refuge, not least the location of the incident and the wind direction, fetch and swell conditions. Clearly incident-speciﬁc conditions will dictate the parameters of available locations. The choice of a place of refuge will be more robust if it can be demonstrated that the decision is supported by a system of formal assessment. Thus two forms of assessment become necessary: • Pre-event generic analysis of locations that lend themselves to becoming a place of refuge for ships. MCA undertakes such assessments as part of the UK’s response to OPRC planning.

38

Guidelines on designating a ‘particularly sensitive sea area’ (PSSA) are contained in IMO Resolution A.927(22), Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identiﬁcation and Designation of Particularly Sensitive Areas, Adopted on 29 November 2001, IMO Doc. A 22/Res.927, 15 January 2002. The IMO Marine Environmental Protection Committee designated the Western European PSSA in 2004.

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• Event-speciﬁc analysis of data relating to an incident as and when it occurs. Depending upon the nature of the incident, this analysis may have to be made in very short time indeed. In other cases, time may permit longer and more detailed considerations to be made. Even though the UK has a robust policy for dealing with requests for a place of refuge, the offer of assistance may not always mean a suitable safe haven is offered. In the past there have been several incidents where the decision has been taken to tow the casualty out to sea and sink it. See below for case histories. Today, such a decision has political implications that make this scenario less likely. On occasion, other government bodies involved with other pieces of legislation have become involved in this process. For example, there are restrictions on dealing with sinking ships under the Food and Environment Protection Act 1985,39 which is also linked to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), 1972.40 The case study of the ‘Christos Bitas’ (see below) illustrates the issues raised and demonstrates the need for co-operation between government departments when considering this option.

A TRIED AND TESTED SYSTEM: IMPLEMENTING PLACES OF REFUGE POLICY As has been seen, the UK system for addressing the issue of places and ports of safety is to use the powers of intervention and direction invested in SOSREP working with MCA’s Counter Pollution and Response Branch. The system has responded to many cases and has addressed a number of incidents requiring casualties to be sent to places of refuge. The UK system includes: • • • • •

24 hour support from the Coastguard rescue centres SOSREP to provide the decisive decision-making authority ofﬁcers from the MCA Counter Pollution and Response Branch a robust National Contingency Plan involvement of independent experts in salvage and marine pollution response through framework agreements • environmental advice through the Environment Group • fully established co-operation with UK harbour masters

39

Food and Environment Protection Act 1985, (UK), 1985, c. 48. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 29 December 1972, 1046 U.N.T.S. 120, as amended by the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 7 November 1996, 36 I.L.M. 1, Art. V(1) (hereafter London Convention). 40

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This system is tried and tested and has been found to work. SOSREP plays a decisive role in the system and its function will be described in greater detail below.

SOSREP The delegated powers of SOSREP are critical when considering the requirement for a place of refuge, nomination of a place of refuge and the acceptance by any authority to receive the casualty. This may be via acceptance or via intervention. There are four main points that can be considered: • Harbour Authorities and Harbour Masters In addition to powers to intervene and direct shipping and those in charge of ships, SOSREP has extensive powers to direct harbour authorities and harbour masters. This situation occurs where a ship is in harbour waters, or has been directed into them. SOSREP can require harbour authorities or harbour masters to take, or refrain from taking, any action of any kind whatsoever. • Persons in Control of Coastal Land or Premises SOSREP can issue directions to persons in control of private facilities (Marine Safety Act 2003 came into effect during September 2003).41 These directions are for the purposes of removing or reducing a risk to safety or of pollution following an ‘accident’. The direction can require such persons to grant access or facilities in relation to any ship or anything that is, or was, on the ship, including any people. The directions may include: – permitting persons to land – making facilities available for undertaking repairs or other works – making facilities available for the landing, storage and disposal of cargo or of other things Merely agreeing for a ship to proceed to a nominated place of refuge on occasions will not sufﬁce. There have been several high proﬁle incidents where facility owners have refused access for a ship in need of assistance (see the ‘Dole America’ case study below). A good example is Sullom Voe in Shetland Isles. A useful shelter for a ship, but not particularly useful if the ship is not granted the access of a berth or facility. This is because of the deep water, which means a ship cannot safely anchor thus can only berth alongside. The Marine Safety Act addresses this shortfall by permitting direction against riparian wharf owners.42 41 42

Marine Safety Act 2003, supra note 11. Ibid., para. 2.

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• Action in Lieu of a Direction Where SOSREP is entitled to give a direction, or has given one, which has not or is not likely to achieve the desired result, SOSREP can take such action as appears necessary to achieve the purpose for which a direction was, or could have been, given. Examples could include boarding and taking control of a vessel, making arrangements for a vessel’s destruction, and entering land and making use of available facilities. • Security for Persons Receiving Directions (Costs and Expenses) All the above powers have ramiﬁcations with regards to costs associated with compliance to directions. Any person, other than the shipowner, to whom a direction is given, is entitled to recover the costs of his compliance with the direction from the shipowner. In respect of the expenses incurred by persons in control of land, it is also stated that the costs of compliance with directions are recoverable from the shipowner of the ship.43 There is also provision for the Secretary of State to make payments to such people and to recover those payments directly from the owner of the ship.44 UK law makes it clear that where unreasonable loss or damage is caused by complying with directions that were not reasonably necessary, or are out of proportion to the good achieved by the direction, then an application may be made to the Secretary of State for compensation.45 The UK has therefore a robust control mechanism in place for dealing with marine casualties. Of course marine casualties do not always respect national boundaries. This problem can only be overcome by bilateral and multilateral co-operation arrangements linked to OPRC Contingency Planning arrangements. Examples in the UK include the bilateral Mancheplan between the French and UK,46 and the multilateral Bonn Agreement, which is discussed more fully below.

INTERNATIONAL CO-OPERATION: THE BONN AGREEMENT Managing a marine incident is complicated by the virtue that such incidents and subsequent marine pollution can be transnational, requiring international co-operation. Finding places of refuge may require co-operation between coastal states with adjacent pollution control zones because marine pollution

43

Ibid., para. 15(3). Ibid., para. 15(4). 45 Ibid., para. 14. 46 Anglo/French Joint Maritime Contingency Plan (Mancheplan), on ﬁle with the Maritime and Coastguard Agency. 44

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does not respect political boundaries. The North Sea littoral states and the European Union have committed themselves to co-operating in combating marine pollution and co-ordinating anti-pollution surveillance activities under the Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances, 1983 (Bonn Agreement).47 The UK is a contracting party to the Bonn Agreement.48 The Agreement is implemented by representatives of national pollution response authorities. Many European countries are leaders in the ﬁeld of surveillance and combating marine pollution. The members of the Bonn Agreement utilise this expertise in the planning for and management of pollution incidents. Places of refuge (formally ‘safe havens’) have been discussed at the Bonn meetings and included in the Bonn Agreement Counter-Pollution Manuals for many years.49 Chapter 26, Places of Refuge, outlines principles for a rational approach for the designation and use of places of refuge and principles of decision-making following a request for a place of refuge. It also details an information-checklist for a responsible authority, as well as a checklist for the provision of information by a vessel in distress.50 Indeed, the Bonn chapter on places of refuge formed the backbone of the IMO Guidelines. The IMO Guidelines serve as a reference while the Bonn Agreement provides the mechanism to facilitate this co-operation. On occasions it can be in the interest of both states for a ship seeking refuge in the pollution control zone of one state to be given access to a place of refuge in the jurisdiction of another state, if that were a better location to deal with that vessel. It is thus necessary for neighbouring states to share information on places of refuge. Therefore, neighbouring member states need to have a common basis for the generic assessment so that, when event speciﬁc information is provided, the best place of refuge can be offered to a ship in difﬁculty. The case study of the ‘Ever Decent’/‘Norwegian Dream’ incident (see below) is a good example of the beneﬁts of such co-operation. This marine incident required two places of refuge in different jurisdictions.

47

Bonn Agreement, Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances, Bonn, 18 September 1983, <www.bonnagreement.org/eng/html/welcome.html >, 7 July 2005. 48 Ibid., the Parties are: the Kingdom of Belgium, the Kingdom of Denmark, the French Republic, the Federal Republic of Germany, the Kingdom of the Netherlands, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland and the European Economic Community. 49 See, for instance, s. 26.1, “Rational Approach for the Designation and Use of Places of Refuge” of The Bonn Agreement Counter-Pollution Manual (London, Bonn Agreement Secretariat, 1998), <www.bonnagreement.org/eng/html/welcome.html>, 7 July 2005. 50 Ibid., ss. 26.3 and 26.4.

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SHIP-TO-SHIP TRANSFER HISTORY IN THE UK Ship-to-ship (STS) transfer of cargo and/or bunkers is one of the primary options when attempting to reduce a threat of signiﬁcant marine pollution. However, unless the sea conditions are good, such an operation needs a place of refuge. The UK has signiﬁcant experience in this area. The Shell Oil Company was instrumental in the development of STS. In 1967 the company stated its intentions to lighter ships in Lyme Bay, Dorset. The plan was to build speciﬁc tonnage to lighten crude from Very Large Crude Carriers in Lyme Bay and tranship into European ports. The requirement was simple: ships trading from the Persian Gulf were too large to enter the majority of ports in northwest Europe and required a safe location to transfer their cargo. The public and government of the time were somewhat bemused given the then recent ‘Torrey Canyon’ disaster. Nearly 40 years later, the debate continues as to what level of control the UK Government should exercise in allowing such operations. Over the years the level of the trade has varied. Initially it was very active with the two oil majors, BP and Shell, actively engaged in STS, mainly in Lyme Bay. Other areas were also used, notably Southwold on the east coast. The requirement for STS has declined with the construction of new oil reﬁneries and deepwater terminals in several locations. Recently, however, there has been an upsurge in the trade. Multiple transhipments of very heavy fuel oil (VHFO) and Russian export blend crude oil (REBCO) have been taking place in Lyme Bay and off Southwold. MCA has reviewed the control mechanisms that should be in place for such operations during peacetime. However, there must always be exceptions for marine casualties where the best option is to conduct ship-to-ship transfer operations. Any future controls will still allow such emergency operations anywhere in UK controlled waters. It is anticipated domestic legislation controlling ship-to-ship transfer operations will be put in place during 2005.

CASE HISTORIES The case histories presented below demonstrate that every request for a place of refuge presents unique challenges. These case studies illustrate how the UK system works in practice. Many have established a precedent and indeed changed legislation.

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‘Ever Decent’ Involved in collision with the Norwegian Dream. Place of refuge required for both ships. In August 1999, the Panamanian-registered container vessel ‘Ever Decent’ and the Bahamian-registered cruise ship ‘Norwegian Dream’ collided some 12 miles off Margate in the southwest lane of the Dover Strait trafﬁc separation scheme (TSS).51 Weather conditions on scene were very good, with a slight sea and good visibility. The collision was outside UK territorial sea limits, but within the UK pollution zone and hence under the co-ordination of Dover Maritime Rescue Co-ordination Centre (Dover MRCC). The ‘Norwegian Dream’, with 2,300 passengers and crew onboard, was on passage from Oslo to Dover. Dover was to be the last port of call for the cruise. ETA at the pilot station was early morning, ﬁrst light. The ‘Ever Decent’, a cellular container ship with 25 crew on board, was on passage to Zeebrugge, Belgium, crossing the TSS at an angle of about 67 degrees to the line of the southwest lane, the lane the ‘Norwegian Dream’ was steaming down. The following outlines how the major events of the maritime incident unfolded: Initial reports indicated the ‘Ever Decent’ was severely damaged and was listing 25 degrees to port. Several containers had been lost overboard and a ﬁre had started at the collision point. The ‘Norwegian Dream’ reported she had suffered damage to her bow and bridge wing, lost two lifeboats, and that four containers tumbled onto the fo’c’sle, but there was no ingress of water. Some time later the ‘Norwegian Dream’ reported all passengers and crew were accounted for. Intentions were to proceed to Dover as a place of refuge. This was communicated to the rescue co-ordination centre in Dover, UK. This was accepted as the most suitable option and immediately granted to the ship. Forty minutes into the incident an on-scene ship reported burning debris in the water and a ﬁerce ﬁre on at least two containers on the upper deck bays of the ‘Ever Decent. Initial assessments of the cargo type suggested a wide range of IMO classes were on board. In less than one hour, the ﬁre onboard the ‘Ever Decent’ was out of control. Shortly after midnight, the emergency response by HM Coastguard had swung into action. With the worsening situation Dover Coastguard issued a Mayday relay broadcast on behalf of the master. Concurrently with the search and rescue phase, the Coastguard had also alerted headquarters, media,

51 Bahamas Maritime Authority, Report of the Investigation into the Collision between the Passenger Vessel “Norwegian Dream” and the Container Vessel “Ever Decent” in the Approaches to the Dover Strait at 0055 on 24 August 1999 (London, Bahamas Maritime Authority, 12 May 2000).

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enforcement, surveyors, salvage and counter-pollution staff within the Maritime and Coastguard Agency. MCA further offered its assistance to the master of the ‘Ever Decent’ and owners in Taiwan with respect to salvage operations. An international consortium of salvors accepted a Lloyds Open Form LOF 95 contract.52 Seven salvage tugs were quickly en route and a rapid response team was mobilised from Rotterdam. SOSREP for maritime salvage and intervention formally intervened issuing a direction to submit any plans for salvage of the vessel or its cargo, or any other proposals they have to prevent or minimise pollution to MCA for approval. By 0445 the ‘Norwegian Dream’ was in the safe haven of Dover, alongside and further accessing the damage. The ‘Ever Decent’ remained at sea and was experiencing increasing difﬁculties, the most serious being the spread of the ﬁre where mixed containers with signiﬁcant quantities of hazardous cargo (primarily potassium and sodium cyanide) presented immediate risks. There was a risk of explosion, and noxious smoke billowed hundreds of feet into the air, but fortunately well clear of the coast. Despite a gash in the ship’s side just four metres away from a tank containing 400 tonnes of heavy fuel oil, the tank was not breached. An MCA surveillance aircraft over ﬂew the area and reported minimal sea pollution but extensive toxic smoke from the burning ship. Public health experts were brought in to advise on this pollution threat, working closely with scientists from MCA. Further intervention by SOSREP was undertaken to establish a temporary exclusion zone around the casualty. This prohibited any surface vessel around the casualty not involved in the salvage operation to keep clear. Media interest was extremely high. The ﬁrst pictures of the damaged cruise liner limping into Dover were ﬂashed around the world. Media satellite crews had descended on the Port of Dover, and required live feed from MCA before drawing their own conclusions. In addition to the Salvage Control Unit, a media team were despatched to the scene, as per the contingency plan arrangements highlighted in the NCP (see Chapter 7 in this volume for a discussion of media arrangements in the UK). Salvage mobilisation carried on through the day. Salvage teams, equipment, a MCA Marine Casualty Ofﬁcer, and civilian ﬁre teams from Rotterdam were all winched aboard. During the afternoon of the ﬁrst day, the Salvage Control Unit was formally set up at Dover MRCC. An Environment Group was established to provide advice to the Salvage Control Unit. Membership of the Salvage Control Unit was strictly controlled and limited to the SOSREP, MCA Pollution and Salvage Ofﬁcer, owners/insurers representative, salvage manager

52

The consortium was led by Smit Tak of Holland in association with the UK-based Klyne Tugs and West Coast Towage.

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and an Environmental Liaison Ofﬁcer. There were great pressures on SOSREP to increase the membership to include the shipowners, cargo, hull and protection and indemnity (P&I) interests, lawyers, Marine Accident Inspection Branch (MAIB), ﬂag interests and others. The ﬁre burned for another six days and was slowly brought under control. Stubborn ﬁre spots were tackled one by one and pipes were inserted into individual burning containers in order to ﬂood them. A total of one million tonnes of seawater was used to douse the ﬁre. This raised further questions. Was this water now contaminated? How noxious was the water now contained on the ship that mixed with the various chemicals in the containers? The agreed response was to monitor and reduce the ﬁre intensity over a period of days. The Belgian and French authorities were consulted at an early stage in order to agree to conditions for an escorted passage to the port of Zeebrugge through the controlled French and Belgian waters. MCA and Belgian authorities undertook a joint technical inspection of the vessel and a passage plan was ﬁnally approved. Some six days after the collision, the ‘Ever Decent’ arrived in Zeebrugge with the ﬁre extinguished but with smouldering containers. Throughout these operations the container ship, under a direction from SOSREP maintained a position outside UK territorial waters but within the UK pollution control zone. Investigations as to the cause of the incident sat with the respective ﬂag states, Panama and Bahamas. MCA learned many lessons in responding to the ‘Ever Decent’/‘Norwegian Dream’ incident. A place of refuge was granted on a multilateral basis involving moving the ship through a variety of jurisdictions. The operation from Search and Rescue, dealing with the casualty and associated counter pollution activities, concluded successfully with national and international assistance from several organisations. For the ﬁrst time, Lord Donaldson’s model of a Salvage Control Unit was tested live and proved to be a workable focus for national, international and inter-agency co-operation. Leading salvors gained ﬁrst hand experience of the new MCA approach to salvage and intervention. Since this incident the SCU has been established in numerous incidents.

‘Dole America’ Private wharf owner refused access for casualty to use to dry-dock services. The Dole America struck the Nab Tower in the Solent Approaches and was beached by the master and pilot to prevent her capsizing.53 A full cargo of pineapples and bananas was on board. After re-ﬂoating, the vessel required drydocking facilities to enable jury repairs to be affected to the vessel. Although

53

Report on the investigation of the collision of ‘Dole America’ with the Nab Tower

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the dry-dock was empty at the time, there was a major ship refurbishment contract due in one week’s time. Access to the dock was granted at ﬁrst but later refused even as the casualty had covered over half of the passage from the site of re-ﬂoating, under tow and supported by sheer legs, towards it. The refusal was not lifted, and the vessel had to make a further dangerous journey (still supported by the sheer legs) to another repair facility. The introduction of the Marine Safety Act 2003 provides that private wharf owners can be directed to accept casualties.54

‘Magnitude’ Granted entry to Milford Haven laden with 90,000 tonnes of HFO after hull failure. Six days after the ‘Prestige’ sank, the ‘Magnitude’ was awaiting entry to Milford Haven to discharge its cargo of heavy fuel oil (HFO).55 At daybreak the crew found themselves in the centre of an oil slick that was issuing from a visible crack in the side of the vessel. Whilst the ‘Magnitude’ transferred cargo from the tanks near the crack, SOSREP made contact with the Milford Haven harbour master who also held a meeting with his local Environment Group to explain the situation. It was rapidly agreed that, despite the risk of pollution from the vessel by HFO, bringing the vessel into the port presented the least risk of pollution to the greater environment. On this occasion there was no direction issued. The harbour master accepted the situation and allowed entry to the vessel. The ‘Magnitude’ was ﬁnally brought into the port, boomed and discharged successfully with little or no pollution. Since then the decision to allow the vessel to enter the Haven has been reviewed by the port authority, and the harbour master has been instructed to refuse entry to a future vessel in similar circumstances. Milford Haven wants to protect itself from legal action ensuing from pollution within their port and has insisted that the UK Government take full responsibility for this risk by requiring a direction to admit vessel under similar circumstances.

in the eastern approaches to The Solent on 7 November 1999 (Southampton, Marine Accident Investigation Branch, 2000), Report No 32/2000, <www.maib.gov.uk/publications/investigation_reports/2000/dole_america.cfm>, 7 July 2005. 54 Marine Safety Act 2003, supra note 11, para. 2. 55 See Maritime and Coastguard Agency website report of the incident, <www.mcga.gov.uk/c4mca/mcga-environmental/mcga-dops_cp_environmentalcounter-pollution/mcga-dops_cp_sosrep_role/internet-_dops-_counterpollutionplaces_of_refuge__/internet__dops_counterpollution_places_of_refuge__case_studies_ _.htm>, 7 July 2005.

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‘Harvest Reaper 3’ Steel hulled trawler with grounding damage to ﬁsh hold leading to instability, requiring immediate place of refuge. Smaller incidents can be as problematic as larger, more newsworthy incidents, and ‘Harvest Reaper 3’ is one such example. The ‘Harvest Reaper 3’ was returning from ﬁshing grounds fully laden with ﬁsh. She ran aground in bad weather off Stornoway. The ﬁsh hold was gashed leading to instability. She immediately started listing and headed for shelter. The value of the ﬁsh far outweighed the value of the hull. After a rapid assessment, a place of refuge was granted at Brascleate Pier, Isle of Lewis. The ETV was also sent to the scene. Intentions were to offer shelter whilst the casualty was stabilised. As she berthed the ﬁsh hold further ﬂooded, and the boat started to capsize. This stopped as she lay against the pier. In sight of the casualty were several million pounds of ﬁsh farms. The crew were occupied with salving the valuable cargo of ﬁsh. The ETV became engaged in preventing the ship from causing substantial damage to the pier. A swift pollution prevention response stopped any damage to the ﬁsh farms from tainting and to surrounding areas. Fortunately no liability issues arose from this incident. An option that may be considered another time is to let the ship founder at sea.

‘AB Bilbao’ Dangerous cargo – given shelter offshore and later brought into port for temporary repairs. The ‘AB Bilbao’ was making passage down the North Sea towards the Dover Strait into a southwest gale when an explosion blew off the ﬁrst section of her single hold hatch-cover.56 This exposed her cargo of 3,300 tonnes of fero silicone to sea and rain. The datasheets for the cargo showed that the presence of moisture would cause emissions of hydrogen, acetylene, arsine and phosphine. The vessel was instructed to take shelter from the winds offshore in the Margate Roads. It was realised that the vessel could not lie in this position for any length of time, however, as the wind was forecast to strengthen to storm force ten from the southeast. The problem was how to evaluate the real risk posed by the wet cargo. The response team needed to locate an expert source of information about the behaviour of the cargo. Eventually two sources of information were found – one of whom worked for the owners and the other as an independent advisor to

56

Ibid.

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SOSREP. The risk was evaluated as low in real terms, and the casualty was brought into the Medway Ports under a direction where temporary repairs were carried out. However, at one point the environmental advice indicated that major portions of southeast UK and parts of Holland should be evacuated. The impartiality and valuable advice of the independent expert enabled the teams involved to properly evaluate the risk posed by the situation and to take meaningful decisions.

‘Wester Till’ General cargo/container vessel on ﬁre, IMO classiﬁed substances, urgent requirement for place of refuge. The Wester Till had a part cargo of pallets of rolled paper stowed in the after hold beneath a deck cargo of containers.57 These caught ﬁre as the vessel headed down the Channel from Antwerp. Attempts to extinguish the ﬁre with CO2 were unsuccessful, and a shore-based ﬁre-ﬁghting team and a salvage crew were transferred onto the casualty. It was known that there were quantities of cargo described as ﬂammable liquids, corrosives, poisonous toxins and miscellaneous IMO classiﬁed items on board, some of which were close to the site of the ﬁre. By the early hours of the morning the ﬁre was considered to be smouldering and under control. Arrangements were made to bring the vessel into the port of Southampton so that cargo could be removed and water from shorebased ﬁre appliances used to ensure the ﬁre was out. All available ﬁre appliances were tasked to the quayside at Southampton. During the passage, ﬁre ﬁghters entered the hold every 30 minutes to quench small ﬂames and keep control of the ﬁre. Mid-morning the salvage master on board the casualty reported the ﬁre had re-ignited and was spreading rapidly. Onboard resources had been overwhelmed and the vessel needed to be alongside at the earliest opportunity. Within ten minutes all arrangements had been made to divert the vessel into the Portsmouth naval dockyard and alongside. Within 45 minutes of the ﬁre report, the vessel was manoeuvring alongside and the shore-based ﬁre appliances from Southampton were making arrangements to ﬁght the ﬁre. All decisions were rapid and decisive with full co-operation from all parties and organisations. This could only be achieved through the extensive trust and mutual understanding of everyone involved in the incident.

57

Ibid.

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‘Mimosa’ Serious hull fatigue with associated damage. The ‘Mimosa’, an ultra large crude carrier, suffered cracking in the forepeak area that resulted in the loss of plating ten metres below the laden waterline. This occurred 80 miles to the west of the Isle of Lewis whilst the tanker was en route from to the United States from Sullom Voe, Shetlands, with a cargo of 337,024 tonnes of Brent crude oil. French authorities refused to allow the ship into Le Havre to facilitate an emergency ship-to-ship transfer. UK authorities eventually agreed that the ship be allowed into the conﬁnes of Lyme Bay. A few days’ later 130,000 tones of crude oil were transferred into the Knock Klune via STS. A further 75,000 tonnes was transferred in the following week.

‘Christos Bitas’ Serious grounding of medium crude oil carrier. In October 1978, the tanker ‘Christos Bitas’, carrying 35,000 tons of crude oil, hit rocks four miles east of the Smalls, to the west of Wales. The master reported bottom damage and that oil was leaking, but he requested assistance only in dealing with the oil pollution. Soon after the ﬁrst report the tanker reported that it was free of the rocks, and HM Coastguard requested the master to steam slowly seawards. A hydrographic survey vessel in the vicinity reported that the tanker was turning to port, spilling oil and listing to starboard. Soon afterwards the master reported that the leak had stopped and that he was heading for Belfast. Ofﬁcials held talks with the charterers of the vessel and owner of the cargo. The tanker was asked to stop to reduce the area of pollution. In the early hours of the morning the tanker was listing 7° to 8° to starboard with the list increasing. Nineteen crew members were airlifted to safety and a marine superintendent was landed on the tanker. Later it was reported that three tankers had been identiﬁed to receive oil pumped from the damaged tanker. With great difﬁculty, in an operation that lasted about seven days, the at-sea transfer of cargo was successfully completed. After a further two days it was decided to remove most of the bunkers. One day later the owner’s representative announced that the vessel was damaged beyond repair. It was agreed that the vessel should be sunk in a position chosen to minimise pollution. During towing, the weather worsened and the damaged tanker developed a 50 degrees starboard list. The salvage team worked to correct the list, but a forecast of winds of severe gale force 9 to severe storm force 11 further threatened the vessel. It was decided to sink the damaged tanker at a mutually accept-

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able position. It should be noted that there was no similar SOSREP control mechanism in place at this point in time. All parties were in agreement to this action plan.

CONCLUSION As each of the above case histories shows, every maritime incident is different. Likewise, requests for a place of refuge vary as do the outcomes to those requests granted. With the continuing reduction of maritime casualties across Europe and the world, the requirement for offering ships in need of assistance a place of refuge will be infrequent. However, as past events have shown, the key to dealing successfully with a marine casualty is a robust contingency arrangement. This must include the capability of rapidly assessing a casualty and the needs of the vessel. Any required decisions must be rapid, consistent and deliverable without any political interference. Intervention, as opposed to interference, may be required. The UK is fortunate in having a system capable of delivering on all these requirements. A clear policy and procedures for granting refuge are one element of this system. The National Contingency Plan for marine pollution from shipping and offshore installations provides a very robust element for dealing with marine incidents, and has developed over time, mainly due to lessons learnt from the numerous casualties the UK Government has been involved in. In conclusion, providing a place of refuge for ships in need of assistance embodies the vision of the Maritime and Coastguard Agency: Safer Lives, Safer Ships, Cleaner Seas.

Chapter 17 Places of Refuge for Ships: The Danish Approach John Liljedahl INTRODUCTION Every year, about 60,000 ships pass through Danish waters, and this ﬁgure does not include domestic ferry trafﬁc. The majority of the ships will, during a considerable part of their passage, be less than ﬁve nautical miles from the coastline and will pass through a strait1 into the Danish territorial sea2 or pass in a

1

Passage by merchant vessels through the Danish Straits (the Little Belt, the Great Belt and the Sound) is regulated by a treaty between Denmark and most of the European States signed at Copenhagen on 14 March 1857, the United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, UN/Doc. A/CONF.62/122, 7 October 1982 (hereafter LOS Convention), and customary international law. Denmark became a party to the LOS Convention in 2004. Upon ratiﬁcation, the Denmark made the following declaration: 'It is the position of the Government of the Kingdom of Denmark that the exception from the transit passage regime provided for in article 35 (c) of the Convention applies to the speciﬁc regime in the Danish straits (the Great Belt, the Little Belt and the Danish part of the Sound), which has developed on the basis of the

455 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 455–469. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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corridor along the territorial sea of Denmark, Sweden or Germany (see Figure 1). Ships in distress in those waters have normally been so close to the coast and sheltered waters that a decision as to where the ship should proceed or be towed has to be taken within minutes. A place of ‘refuge’ is often reached when the ship is beached or stranded. This happens before anyone in the coastal state has a chance to make any attempt to assist the ship, except with regard to rescue of the crew by helicopters. In the past, it has therefore not been an obvious requirement for the Danish Government to designate places of refuge. Neither have there been incidents where the authorities have ordered ships in distress to move away from Danish waters, thereby resulting in requests from foreign shipowners or governments for places of refuge for ships in distress.

RISK ASSESSMENT The risk of pollution of the Danish coastline as a result of a shipping accident has been present for a long time. As early as 1979, there were a couple of tanker groundings and, in 1985, a tanker ruptured its tanks following a collision with a lighthouse in a fairway causing only minor pollution damage. These incidents, however, served as a warning to Danes of what could happen if larger ships were involved. One incident in the North Sea, in October 1998, also gave the Danes a hint of what could happen in the future. The Bahamian-registered ‘Pallas’, with a full load of timber cargo, had a ﬁre on board about 60 nautical miles from Esbjerg, which is the largest Danish port on the west coast of Jutland facing the North Sea. Due to the heavy seas and wind, and without tugs with sufﬁcient bollard pull to handle the ‘Pallas’, it was not possible to take the ship in tow to Esbjerg. German and Danish helicopters picked up the entire crew and, much to the relief of the Danes, the ship drifted towards German waters and eventually ran aground there. In addition to the risk of pollution from ships in the North Sea trading to and from the Baltic and Scandinavian countries, Denmark also has to consider the activities at the oil ﬁelds in the North Sea. Several of the oil ﬁelds are within the Danish exclusive economic zone (EEZ) (see Figure 1), but that is a different issue.3

Copenhagen Treaty of 1857. The present legal regime of the Danish straits will therefore remain unchanged’. 2 The Danish territorial Sea has been established by Act No. 200 of 7th April 1999 with a maximum of 12 nautical miles and reduced in some areas between Sweden and Germany in order to secure corridors of non-territorial waters. (See Figure 1.) 3 The Danish EEZ is established by Act No. 411 of 22nd May 1996.

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Figure 1: Internal waters, territorial sea and EEZ boundaries (in white lines)

Source: Admiral Danish Fleet (Søværnets Operative Kommando)

Certainly there has been an increasing awareness of the need to enhance preparedness to deal will oil pollution incidents beyond what is demanded in the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 (OPRC Convention).4 There is a desire to reduce the risk of oil pollution of Danish waters and the coastline by having mandatory pilotage for passing ships and by phasing out single hull tankers trading in this area. Even though vessel passage to a large degree takes place in the Danish territorial sea, according to international law it is not possible for Denmark to enforce such legislation on ships only passing through the straits. International agreements to this effect will be necessary. On 29 March 2001, a collision in Kadet Renden, a fairway between Germany and Denmark, occurred in the German EEZ. The double-hull tanker ‘Baltic Carrier’ spilled 2,700 tons of oil causing considerable pollution along the Danish coastline.5 This incident also showed that despite excellent co-operation with the German and Swedish pollution control units, the weather and

4 International Convention on Oil Pollution Preparedness, Response and Cooperation, London, 13 November 1990 (hereafter OPRC Convention), 30 I.L.M. 733. 5 A casualty report in English prepared by the Danish Maritime Authority is available on <www.dma.dk> under “Casualty Investigation”, 3 August 2005.

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type of oil made it extremely difﬁcult to combat the oil pollution at sea. The incident triggered the Extraordinary HELCOM Ministerial Conference held in Copenhagen in August 2001. The Conference made recommendations concerning routeing, pilotage, electronic chart and information system (ECDIS), automatic identiﬁcation systems for vessels (AIS), phasing out of single hull tankers, adequate emergency and response capacity, and places of refuge.6 In order to understand the potential risk of such incidents, it should be noted that the Danish Maritime Authority (DMA) recorded 47 foreign ships involved in collision or grounding in Danish waters during 2002 and 2003, and eight of those were oil tankers. When Russia began, in November 2001, to export oil from Primorsk on tankers of a size of up to 150,000 DWT the Danish fear of major pollution incidents certainly increased. Denmark has sought international agreement at the International Maritime Organization (IMO) for initiatives to avoid accidents or at least minimise the risk of them. One of the most recent pollution incidents in Danish waters, on 31 May 2003, occurred when the Chinese bulk carrier ‘Fu Shan Hai’, a 69,973 DWT vessel with a load of fertilizer, sank just north of the island Bornholm after a collision. This incident highlighted many of the difﬁculties surrounding the place of refuge issue. The collision took place in the middle of the day with good visibility and WSW winds of 6 m/s in Danish territorial waters only three nautical miles from the rocky coast of Bornholm. As there was considerable water ingress, the master of ‘Fu Shan Hai’ decided to proceed to shallow waters only six nautical miles away. However, it was impossible to control the movements of the ship, which kept turning to port. Approximately one hour after the collision, both rescue vessels and helicopters arrived at the scene and lifeboats had already been lowered in order to prepare for an evacuation. The ship was likely to sink and was abandoned one and half hours after the collision. Tugs with sufﬁcient bollard pull to take her in tow were not immediately available, and the details of the cargo were not known by the authorities. They concluded any attempt to salve the ship or to tow it to a port or place of refuge preferably should await such information. ‘Fu Shan Hai’ sank about 81/2 hours after the collision, close to the area where the collision took place. Several hundred tons of fuel oil spilled, with the largest proportion polluting the Swedish coastline. This naturally gave rise to Swedish criticism about the Danish response to the incident. Even with hindsight it is impossible to know what would have happened if the ship had been taken in tow by a suitable tug. It might have been possible to take the vessel to

6 The Helsinki Commission is the administrative body of the Convention on the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, 9 April 1992, <www.helcom.ﬁ/stc/ﬁles/Convention/Conv0704.pdf>, 2 August 2005, with parties from all coastal states to the Baltic Sea.

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an anchorage where it could have been reﬂoated or emptied of fuel oil, but towing might also have made the situation much worse. With prior knowledge of the ships that are to pass through Danish waters, including information about the cargo on board and an established preparedness system that equips coastal states to assist ships in distress, would no doubt avoid or control losses and reduce pollution. In this respect the ‘Fu Shan Hai’ incident showed Danes that designating places of refuge should make it possible to take faster decisions as to where to bring ill-fated ships and to have a suitable preparedness and response team already in place.

REGIONAL AND IMO INITIATIVES ON PLACES OF REFUGE A proposal by the European Union (EU) Commission on 24 February 1993 regarding a mandatory information system for ships carrying dangerous or polluting cargoes and the Council Directive 93/75/EEC of 13 September 19937 were forerunners of later European initiatives to monitor vessel trafﬁc. The break-up of the ‘Erika’ in December 1999, and subsequent pollution of the French coastline, accelerated the process in the European Union to establish a vessel trafﬁc monitoring and information system. At the same time, parallel work commenced at IMO to enhance the safety of tankers and to establish a maritime assistance service in each Member State. The issue of giving shelter to ships in trouble was considered by the IMO Maritime Safety Committee in June 2001 and thereafter by the Sub-Committee on Safety of Navigation as a consequence of the incident with the tanker ‘Castor’ in the Mediterranean Sea in January 2001. The ‘Castor’ was denied entry to Morocco, Spain, Gibraltar, France and Italy, among others, and subsequently was repaired at sea. IMO Resolution A.949(23) on Guidelines on Places of Refuge for Ships in Need of Assistance (IMO Refuge Guidelines) is an important element of Danish decisions and plans regarding places of refuge.8 However, designation of places of refuge is only one piece in the mosaic of Danish efforts to establish a vessel trafﬁc monitoring and information system; the maritime assistance service (MAS) as described in IMO Resolution A.950(23) of 5 December 2003 must also be considered.9 Both IMO resolu-

7 Council Directive 93/75/EEC of 13 September 1993 concerning minimum requirements for vessels bound for or leaving Community ports and carrying dangerous or polluting goods, Ofﬁcial Journal L247, 5 October 1993, as amended. 8 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/Res.949, 5 March 2004. 9 Maritime Assistance Services, IMO Assembly Resolution A.950, adopted on 5 December 2003, IMO Doc. A 23/Res.950, 26 February 2004.

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tions are integral pieces of the mosaic of Danish efforts to designate and implement a system of places of refuge for ships in need of assistance. The EU introduced the issue of designated places of refuge in the context of maritime trafﬁc services. However, the loss of the ‘Prestige’ off the Spanish coast in November 2002 increased demands for an early implementation of plans to accommodate ships in distress. Articles 20 and 29 of EU Directive 2002/59/EC Establishing a Community Vessel Trafﬁc Monitoring and Information System call upon Member States to draft plans to accommodate ships in distress in the waters under their jurisdiction and to establish time limits for them to inform the Commission of the measures taken and to adopt laws, regulations and administrative provisions for such plans by 5 February 2004.10 By 30 June 2003, the Danish Government had informed the EU Commission of its plans for designating places of refuge. On 4 February 2004 it announced which ports and places had been designated in order to comply with the provisions of EU Directive 2002/59/EC.11 Clearly, the ‘Fu Shan Hai’ incident encouraged the Danish Government to support the EU Directive and subsequent IMO initiatives. The Danish response to both these IMO resolutions, in addition to the EU directives, is examined in more detail below.

DANISH PLACES OF REFUGE: POLICY AND STRATEGY Designated Places of Refuge Denmark has designated a total of 22 places along its coastline either as speciﬁc ports or suitable anchorages (see Figure 2).12 Preparatory work to this decision involved the Ministry of Environment, the Ministry of Economics and Business Affairs, the Ministry of Defence and the Ministry of Transport and a working group with participants from the following agencies and departments: Danish Environmental Protection Agency Danish Forest and Nature Agency Danish Maritime Authority Defence Command Denmark Royal Danish Administration of Navigation and Hydrography 10

Directive 2002/59/EC of the European Parliament and the Council of 27 June 2002 establishing a Community vessel trafﬁc monitoring and information system and repealing Council Directive 93/75/EEC, Ofﬁcial Journal L208, 5 August 2002, Article 20. 11 “Redegørelse om udpegning af nødområder i de danske farvande”, Nr. 1, 2004, Miljøstyrelsen, Miljøministeriet (Report on Preliminary Designation of Places of Refuge in Danish Waters No. 1, Danish Environmental Protection Agency, Ministry of Environment, Denmark, 4 February 2004). 12 Ibid.

Places of Refuge for Ships: The Danish Approach Figure 2: Danish designated places of refuge

Source: Danish Environmental Protection Agency

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Chapter 17 Figure 3: Special protecion and conservation areas along the Danish Coast

Source: Ministry of Environment, Denmark

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The Working Group issued a ﬁrst draft of its recommendations on 19 August 2003 based on consultations with representatives from the 13 counties and the 271 local authorities in the country. Consultations were also held with various shipping and environmental organisations. The revised draft report was subsequently sent to all affected parties for further consideration. As a result, the decisions as to designation of places of refuge was known to all relevant bodies when the ofﬁcial report on preliminary designation was announced on 4 February 2004 by the Danish Environmental Protection Agency.13 Emphasis has been put on securing places for ships with a draught of 10 metres or more although this was a difﬁcult task as the coastal areas are shallow and there are many more suitable areas for ships with a draught of less than 10 metres. Another important factor was to ensure that the chosen areas could be separated from the adjacent marine environment, e.g., by oil booms. For ships with a high potential of pollution, 14 places have been chosen (see Figure 2) of which nine are ports and the remainder are anchorages. Ships that are considered to have a low pollution potential will have eight more locations available to them, all of which are in sheltered areas such as anchorages. Instead of preliminary designation of speciﬁc places of refuge, the Working Group considered issuing a list of areas whose use would be prohibited for environmental reasons, leaving the actual designation of a place of refuge to be decided when an incident makes it necessary. Such a solution was, however, rejected. One reason for this was that the best response in a speciﬁc situation will be achieved if the local authorities and local task force have a chance to equip and train themselves in order to accommodate a ship in distress. In line with IMO Refuge Guidelines, the designated places of refuge should have a contingency plan in place. The Danish approach has been that all the designated places must have plans as to what actions are to be taken and by whom. In the preparation of these plans, which is still underway, it is possible to get a clear picture of the availability of personnel, tugs or salvage units and material, ﬁre ﬁghting equipment, pollution combating ships, oil booms and skimmers, storage tanks et cetera. It can be ascertained whether it is necessary for the government or local authorities to secure further equipment for speciﬁc places. They can also investigate if there are privately-owned ships and/or equipment in the area that can be hired for the purpose at agreed-upon tariffs so that fees for service is not a delaying factor during an emergency. The list of places of refuge as announced by the EU deadline of 5 February 2004 should not be regarded as ﬁnal in the sense that no other areas can be designated in the future.14 A change in trade patterns and the development of new oil terminals could lead to revisions. It has, however, been and will continue to

13 14

Ibid. Ibid.

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be a demanding task to make a detailed map of the various environmental issues to be taken into account when a certain area is chosen in preference to other areas. And new studies of certain areas may reveal ecological conditions that will make a revision necessary. In the choice of suitable areas, some European Community environmental protection instruments had to be taken into account. Several areas of Danish waters are listed as habitat and bird protection areas and some of these are extremely close to the most heavily trafﬁcked shipping lanes (see Figure 3).15 Of the nine ports chosen as places of refuge, four are situated at the west coast of Jutland facing the North Sea. Outside those ports, there are no anchorages or sheltered areas that can be used for ships in distress on the North Sea. The port of Esbjerg can accommodate ships with a maximum draught of 10.3 metres and a length up to 250 metres. The other three ports of refuge are Thyborøn (with water depths up to 6 metres), Hanstholm and Hirtshals (both with water depths of 7.5 metres). Although the ports have been designated and should be suitable as places of refuge, their use may be problematic. At this time, the Danish Government has no ocean-going oil pollution combat vessel on station on the west coast of Jutland. Of greater concern is the lack of proper salvage vessels in the area. At Esbjerg, private tugs are available, but not with a size and bollard pull to assist in rough weather in the North Sea. Regarding oil pollution, it is considered to be relatively easy to clean the sandy beaches along the west coast of Jutland. However, the biggest port, Esbjerg, is situated in the Wadden Sea area, which IMO has designated as a Particularly Sensitive Sea Area (PSSA).16 A useful task would be to consider if the present governmentowned stockpile of oil booms and other related materials in the area should and could be complemented by concluding agreements with the offshore industry, which plays a major role in that port. In the Straits Little Belt, Great Belt and the Sound, the number of alternative sheltered areas and anchorages as designated places of refuge and the availability of pollution-combating vessels and equipment should make it relatively easy to ﬁnd quickly a suitable place for a ship requiring assistance. There is also the possibility of beaching a vessel without the risk of severe damage to the hull structure, but the density of vessel trafﬁc here creates a higher risk for pollution.17 15

Council Directive 79/409/EEC of 2nd April 1979 on the conservation of wild birds, <europa.eu.int/comm/environment/nature/nature_conservation/eu_nature_legislation/birds_directive/index_en.htm>, 2 August 2005; Council Directive 92/43/EEC of 21st May 1992 on the conservation of natural habitats and of wild fauna and ﬂora, <europa.eu.int/comm/environment/nature/nature_conservation/eu_nature_legislation/ha bitats_directive/index_en.htm>, 2 August 2005. 16 Designation of the Wadden Sea as a Particularly Sensitive Sea Area, Submitted by Denmark, Germany and The Netherlands, IMO/MEPC 48/7/2, 28 June 2002. 17 On behalf of the Danish Maritime Authority and Royal Danish Administration of

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As noted above with regard to the ‘Fu Shan Hai’ incident, the area around the island of Bornholm is complex, as the coastline to the north and west that are closest to the shipping lanes are bordered by dangerous steep cliffs and rocks rising from the seabed. However, it is relatively easy to ﬁnd shelter if the ship is capable of circumnavigating the island. If not, at present, it would be difﬁcult to get adequate tug assistance for larger ships within a reasonable period of time. As the only place of refuge in this area designated for ships with a high potential for pollution is the port of Rønne, some solution to this problem (i.e., installation of a modern, powerful combined salvage and pollution combating vessel on station) needs to be found. Regarding combat of oil pollution at sea, the nearest large ship for this purpose is stationed several hours away in Copenhagen. While this may not inﬂuence efforts to ﬁnd a safe haven for ships in distress, it shows the vulnerability of this area. Oil pollution on rocky coast is very difﬁcult to combat as we know especially from the ‘Erika’ and the ‘Prestige’ cases.

Implementing the Danish Approach to Places of Refuge The Danish Contingency Planning and Response Organisation Denmark consists of 406 islands and the peninsular Jutland with a total area of about 43,100 km2 and a coastline of 7,400 kms. The population is about 5.4 million, and about three million pay the taxes from which Denmark has to establish an organisation capable of coping with the search and rescue and environmental threats posed by the passage of more than 60,000 ships every year. There is no special coast guard in Denmark so the operational tasks at sea are taken care of by the navy. Admiral Danish Fleet (SOK- Søværnets Operative Kommando) is the body with authority to arrange both search and rescue operations and to respond to pollution incidents at sea. With regard to protection of the environment, navy personnel man and operate two ships (868 GT each) capable of operating on the high seas and two ships (150 GT each) and two vessels (18 GT each) that were designed to combat pollution at sea. In addition, three workboats and three oil barges are available for storage and transport of recovered oil and equipment. Stockpiles of equipment are placed at various ports along the major shipping lanes. Local authorities normally deal with threats and damage to the environment on the coast and in ports. However, in serious pollution incidents, the Ministry of Defence can take charge of the entire operation both at sea and ashore. There are no publicly-owned tugs or salvage units in Denmark, as the general attitude

Navigation and Hydrography the consultants, COWI A/S, developed a “Risk Analysis of Navigational Safety in Danish Waters” that was published in June 2002.

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has been to avoid competing with the private sector. It may, therefore, be necessary to enter into agreements with tug owners and salvage companies to establish the contingency plans to assist ships to the designated places of refuge.

Vessel Monitoring and Information Information about ships in need of assistance or posing a threat to the environment may be obtained from several sources. A call by the vessel in trouble will be received by the Maritime Rescue Coordination Centre (MRCC) under the authority of SOK. In the Great Belt, a vessel trafﬁc service (VTS) continuously receives information from MRCC about all passing ships. MRCC also receives the reports of positions of ships (SHIPPOS) in accordance with recommendations by IMO. In addition, information about ships passing through Danish waters is received from airborne surveillance, either helicopters belonging to the navy or aircraft from the air force, which includes routine surveillance with equipment specialised for marine environment inspections. Radar stations and stations with visual surveillance along the most trafﬁcked Danish waters relay their observations to SOK and this information is combined with reports from the navy or the naval home guard and the information received by AIS. A sufﬁcient number of shore-based installations for receiving and utilising the AIS information as required in Directive 2002/59/EC is expected to be functional by mid- 2005. The present, radar surveillance does not provide complete coverage of all Danish waters, and it has therefore been suggested that it is necessary to establish additional shore-based radar stations to achieve this.

Maritime Assistance Service The aforementioned systems to monitor ship trafﬁc in the waters surrounding Denmark are naturally of vital importance to the establishment of a maritime assistance service (MAS) as recommended in IMO Resolution A.950(23).18 Again, this is a link to the decision-making process to provide vessels a place of refuge. In Denmark, MAS is operated by the same body that takes care of search and rescue, MRCC or SOK. MAS and the systems to deal with places of refuge do not deal with emergency operations where people are in urgent need of life-saving assistance. However, SOK provides 24-hour service and is the most logical institution to choose for communications with ship masters in order to guide and assist them when the situation on board is becoming critical. It will, however, take time to fully implement such a contingency organisation and qualify as a professional advisor to ship masters and serve as the link to ship repairers, salvors and the like.

18

Maritime Assistance Services, supra note 9.

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Closely related to providing such assistance are recommendations to use pilots during the passage of Danish waters. International law does not allow Denmark to establish compulsory pilotage for ships in innocent passage through the straits. Since pilotage is regarded as one way to prevent a critical situation from escalating, it is hoped that international agreements to permit pilotage through Danish waters can be reached. A step in that direction might be the IMO decision in principle in April 2004 to designate the the Baltic Sea as a PSSA.19 Russia is, however, not ready to agree to compulsory pilotage, even in the narrow straits through Danish waters. The ‘Additional Protective Measures’ to the PSSA will be limited to routeing at Gotland, Öland, Bornholm and at the Kadet Renden between Germany and Denmark. Regarding pilotage of ships passing through Danish waters with no intention of calling at Danish ports, only 4,000 out of the 60,000 ships passing every year take a pilot. Therefore Denmark is now considering ways in which to encourage use of a pilot. It is obvious that the ﬁnancial cost is an obstacle to the use of a pilot. One suggestion is to make available a low-cost pilotage system where the pilot is guiding the navigational ofﬁcer from a shore-based centre. With the various electronic means at hand nowadays, this would seem to be a realistic and costeffective solution although it may not give the ofﬁcer the same support as an actual pilot on board the ship. Denmark has decided to establish distant pilotage trials and plans to start them in July 2005. In certain areas, Denmark is also considering establishment of shore-based information centres to provide navigational services free of charge. In addition to the normal VTS, this information might include calls to particular ships with advice on weather forecasts and the general situation regarding the number and type of ships in the area being approached, as well as information on the availability and cost of an actual or remotely-operated pilot. A description of this project is expected in April 2005.

Places of Refuge: Payment for Use and Compensation The establishment of places of refuge and MAS in Denmark will not be linked to any speciﬁc charge to the users. It is not the intention of the Danish Government to collect any fees related to critical situations where ships are instructed to proceed to one of the places of refuge or for the presence of units from the government, which wants to ascertain whether the ship is leaking or not. Staff from the Danish Government that attend to a casualty investigation will likewise not bill the shipowner for their services.

19 Proposed in Designation of the Baltic Sea Area as a Particularly Sensitive Sea Area, Submitted by Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden, IMO/MEPC 51/8/1, 19 December 2003, approved in 2004.

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If, however, the marine environment is damaged, or particular efforts need to be taken in order to prevent this from happening, the costs incurred will be charged against the owner or his Protection and Indemnity (P&I) Club.20 If an actual salvage operation takes place, security and payments of remuneration related thereto will, of course, be based on the International Convention on Salvage, 1989.21 If the ship in question is a tanker where either the International Convention on Civil Liability for Oil Pollution Damage (CLC) and/or latest International Oil Pollution Compensation Funds (IOPCF) are applicable, Denmark ratiﬁed both instruments, including the Protocol that made it possible to receive compensation from this regime.22 By ratiﬁcation of the 1996 Protocol to the Convention on the Limitation of Liability for Maritime Claims, 1976, the limits of liability for other ships will be in accordance with that Protocol and security will have to be arranged on a case-by-case basis as there are no mandatory provisions for ﬁnancial security.23 For ships carrying hazardous and noxious substances other than oil and damage to the environment other than pollution from oil tankers, Denmark, like the other EU Member States, will presumably have ratiﬁed the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention), 1996 by 30 June 2006 and then will be able to get compensation in accordance with this regime.24 Denmark also hopes that the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, will enter into force so the issue of ﬁnancial security for bunker oil liability can be relied upon some day.25 In the mean-

20

See Chapters 11 and 12 for a more detailed discussion of these issues. International Convention on Salvage, London, 28 April 1989, U.K.T.S. 1996 No. 93. 22 International Convention on Civil Liability for Oil Pollution Damage, London, 29 November 1969, 973 U.N.T.S. 3, as amended by the protocols of 1976 and 1992; International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, London, 18 December 1971, 1110 U.N.T.S. 57, as amended by the protocols of 1976, 1984, 1992 and 2003; Protocol of 2003 to the International Convention on the Establishment of an International Fund for Oil Pollution Damage 1992, London, 16 May 2003 (not yet in force). 23 Convention on Limitation of Liability for Maritime Claims, London, 19 November 1976, 16 I.L.M. 606, subsequently amended by the Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims, 1976, London, 2 May 1996, IMO Doc. LEG/CONF.10.8 of 9 May 1996. 24 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 2 May 1996, 35 I.L.M. 1406. 25 International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001, London, 27 March 2001, IMO Doc. LEG/CONF.12/19, 27 March 2001. 21

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time, Danish taxpayers only hope that damage to the environment caused by non-tankers may be claimed on the basis of negligence and covered by the limitation fund established by the shipowner (see Chapter 11). The Danish Government has taken no initiatives to demand a different or additional security than what is stipulated or possible under these international conventions. However, the Danish Government is expecting Article 26 in the EU Directive 2002/59/EC regarding the measures at Community level aimed at facilitating the recovery of, or compensation for, costs and damage incurred for the accommodation of ships in distress will provide additional beneﬁts to Denmark.

CONCLUSION The Danish policy for places of refuge for ships in distress as called upon by EU Directive 2002/59/EC was one of the ﬁrst to be submitted by the required deadline. It is a policy of good intentions, but remains to be tested. Fortunately, the policy is based on Denmark's extensive experience with the management of maritime trafﬁc services in its conﬁned waters in the Baltic and North seas. Even so, the policy is the ﬁrst step in response to a growing problem and its implementation can be expected to lead to learning by doing. Crucially, however, the prospects of this policy will to a signiﬁcant degree depend on appropriate funding to equip, service and monitor the designated places of refuge, and ﬁnancial support from the EU may well be necessary.

Chapter 18 Places of Refuge in Germany Uwe Jenisch INTRODUCTION Recent accidents at sea, such as the stranding of the ‘Pallas’ in 1998 off the North Sea coast of Germany, the sinking of the ‘Fu Shan Hai’ in the Baltic Sea, and the ‘Erika’ off the coast of France have triggered a broad discussion in Germany – like in other states – about the need for places of refuge.1 The term ‘places of refuge’ (Notliegeplätze) was chosen in Germany for all internal discussions after the year 2000 to make clear that both ports and roadsteads could qualify as a place to handle maritime casualties. The issue of ‘safe havens’ or ‘ports of refuge’ is not new in Germany. In 1992 and 1994 studies to develop a comprehensive safety concept for the German Bight identiﬁed the need for ports of refuge and/or roadsteads and mooring places to accommodate ships in distress.2 Practical aspects discussed

1

For an early but comprehensive report on deliberations in Germany, see J. Roos, “Port of Refuge – A Systematic Approach to Deal with Requests for Entering a Port of Refuge”, Paper presented at the 6th International Conference on Safety in the Port Environment, Bremen, 8–10 October 2001. 2 See U. Jenisch, “Überlegungen zum Nothafenrecht”, Hansa, No. 4, 2001, 14–18.

471 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 471–487. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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at that time included the need to lift ﬁre-ﬁghting personnel and heavy equipment aboard vessels, and the pros and cons of using ﬂoating barges as a platform for combating ﬁre and oil spills. Germans had not forgotten their experience with a major chemical accident in 1989 when toxic gases on board the Dutch ship ‘Oostzee’ forced the vessel to seek refuge in the Port of Brunsbüttel, an industrial port with dedicated oil and chemical terminals and professional expertise in handling dangerous goods.3 In the aftermath of the ‘Pallas’ accident of 1998, the federal Minister of Transport initiated an independent working group of eleven experts, known as the Grobecker Kommission, who came forward with a report and a list of 30 recommendations in the ﬁeld of prevention and accident management.4 Although the commission did not directly address places of refuge, it did recommend the elaboration of speciﬁc combating scenarios and of concepts for the reception of large quantities of oil and chemical cargoes from ships in distress.5 The German Casualty Investigation Board (Seeamt), which heard the ‘Pallas’ case, identiﬁed the causes of the accident and addressed all relevant safety problems in detail. Among its ﬁndings,6 the Board mentioned the confusion between federal and regional authorities when they discussed a possible place of refuge for the ‘Pallas’ while it was still aﬂoat. The August 1999 report recommended that in the interest of better assisting future accidents at sea, a choice of adequate ports of refuge should be clariﬁed in advance. The report also identiﬁed the need to clarify whether there is a right of access to a port of refuge under national or international law.7

THE PROJECT GROUP ON MARITIME ACCIDENT MANAGEMENT As a next step, the federal Ministry of Transport set up a temporary ‘project group on maritime accident management’8 in August 2000 consisting of some

3 A report on the ‘Oostzee’ accident was compiled by the State Government of Schleswig-Holstein and discussed in the Plenary of the Landtag, see Plenarprotokoll 14/91 8 July 1999, 6812–6826. 4 “Unabhängige Expertenkommission Havarie Pallas, Der Vorsitzende, Bericht vom 16.02.2000”, Berlin Bundesminister für Verkehr, Bau- und Wohnungswesen, 2000 (hereafter Grobecker-Bericht). 5 Ibid., recommendation no. 11 at 86. 6 Investigation Board of Kiel, Seeamtsspruch DI 16/98 K of 21 August 1999, 61 (mimeographed version). 7 Ibid. 8 Projektgruppe Maritime Notfallvorsorge with eight subgoups and one steering committee.

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130 representatives of federal and Länder ministries and maritime agencies.9 The project group was given the mandate to prepare legal or administrative instruments for the implementation of recommendations that had been tabled by the German Casualty Investigation Board, the Grobecker Kommission and other fora. This ‘bureaucratic’ approach was compelling as Germany is a federal state, consisting of 16 individual states (Länder), including ﬁve coastal Länder.10 The Länder enjoy regional autonomy in such important sectors as ports, police affairs, environmental control in the 12-nautical mile territorial sea, and disaster management onshore and offshore. All ports, with the exception of navy bases, and a few small ‘federal’ ports, are part of the Länder jurisdiction. The navigational uses of the territorial sea, the high seas and most matters of maritime transport fall under the federal government, which is also responsible for the conclusion11 of all international conventions and other legal instruments for maritime safety and security. Without going into the details of this interwoven network, it is evident that maritime safety and security require a close co-operation between the federal and the Länder authorities. There is a long tradition of joint commissions and complementary legislation through the two German chambers of parliament (Bundestag and Bundesrat). An advantage of the project group approach is that it allows for an integrated effort to deal simultaneously with all maritime safety aspects among stakeholders representing federal, regional and specialised institutions and agencies. In recent years, the dualistic approach of corresponding federal and Länder jurisdiction in the ﬁeld of maritime safety came under criticism since a growing number of experts and institutions insisted on the establishment of a centralised German coast guard with concentrated executive powers in all maritime safety and security matters.12 They suggested that the coast guard should integrate all existing maritime police forces,13 have access to all environmental combating

9 The competent maritime agencies of Germany are two federal Waterways and Shipping Directorates (Wasser- und Schifffahrtsdirektionen – WSD) with 11 (local) Waterways and Shipping Ofﬁces (Wasser- und Schifffahrtsämter – WSA) and the federal Maritime and Hydrogrphic Agency (Bundesamt für Seeschifffahrt und Hydrographie – BSH). 10 Bremen, Hamburg, Mecklenburg-Vorpommern, Niedersachsen and SchleswigHolstein. 11 The implementation and administration of international legal instruments may, in certain cases, fall under Länder administration according to the division of competencies under the German constitution. 12 For a full discussion of the German coast guard proposals, see Maritime Safety in the Baltic Sea Area, Vol. III (Schwerin, Land Parliament Mecklenburg-Vorpommern, 2003), 166–176. 13 The federal government operates ﬁve independent services: a maritime border police force with ships and helicopters, a maritime customs service, a ﬂotilla of service

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assets, and operate a single headquarter, which also serves as a point of contact under the International Ship and Port Facility Security (ISPS) Code.14 Regardless of the outcome of this ongoing debate on a German coast guard, the issue of places of refuge remains a joint task for federal and Länder administrations, because practically all commercial ports fall under the Länder jurisdiction. Against this constitutional background, the project group had to elaborate its proposals. While the 30 recommendations of the Grobecker Kommission served as a starting point, other proposals from individual experts, groups and non-governmental organisations were also incorporated. Among the eight subgroups15 of the project group, the one on safety of ship management elaborated the German concept of places of refuge that will be discussed in detail in this chapter. Other subjects of this subgroup relate to improved vocational training of seamen, including refresher courses in maritime safety and accident management. Moreover, the subgroup advocates compulsory equipment for emergency towing be placed on board all sea-going ships. The project group completed most of its work in 2002 and the implementation process started subsequently. Two important practical results were achieved immediately. The ﬁrst was the stationing of eight emergency tugs (four chartered tugs,16 and four state-owned multi-purpose-vessels), which are permanently located at strategic positions in ports or at roadsteads off the German coast. The chartered tugs have a bollard-pull ranging from 25 to 180 tonnes. As a second result, a new joint federal/state institution, the Havariekommando (Central Command for Maritime Emergency – CCME), based in Cuxhaven, started its work in January 2003. Its legal basis is two agreements

units of the waterway administration, a ﬁshery protection force, and an SAR-unit of the navy. The ﬁve coastal Länder each operate their own water police services and local ﬁshery protection services. Additionally, there is a privately-organised SAR life-saving service with 48 rescue cutters. 14 International Ship and Port Facility Security (ISPS) Code, Adoption of Amendments to the International Convention for the Safety of Life at Sea, 1974 as Amended, adopted by the Conference of Contracting Governments to the International Convention for the Safety of Life at Sea, 1974, on 9–13 December 2002, (entered into force 1 July 2004) (hereafter ISPS Code). 15 Eight subgroups were established to deal with: emergency towing, safety of ship management, agreements with neighbouring states, investigation of accidents, structure of an accident management command, liability and insurance, environment, and technology/reporting/training. 16 The four member ﬁrms of the association of tug and salvage operators (‘Arbeitsgemeinschaft Küstenschutz’) own the private emergency tugs, which are chartered by the Ministry of Transport.

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between the federal government and the ﬁve north German coastal states.17 CCME, with a current permanent staff of 38, is responsible for the management of ‘complex casualties at sea’ with the help of existing federal and Länder services.18 For this purpose a joint operation centre for all federal and Länder maritime police forces is being built up at the seat of the CCME. In its daily routine CCME serves merely as a reporting centre with an alert function. In the case of a complex casualty, it functions as a staff co-ordination organisation and becomes fully operational if a complex accident happens. In complex incidents, CCME will co-ordinate all existing federal and Länder services which are needed for intervention at sea and for combating environmental disasters. Among the various tasks of managing and combating complex casualties at sea, the head of CCME will also be responsible for granting or refusing access to places of refuge, in cooperation with the local port authorities. Moreover, CCME will also be the German ‘point of contact’ under the ISPS regime and the national maritime assistance service (MAS).19 The role of CCME may be summarised as a ‘ﬁre-brigade at sea’ rather than as a police force with executive enforcement rights and duties. Unfortunately, CCME falls short of the more radical solution of a centralised German coast guard, which remains under political discussion. The reason why the decision on a ‘real’ coast guard is delayed is a multi-facetted dilemma. In the ﬁrst place, several federal ministries have to agree on one authority to command a German coast guard. As a second hindrance, all governmental authorities hesitate to change the delicate balance of competencies within the German constitution where the Länder would have to give up their police powers at sea. Third, the question remains as to whether or not the legal role of the German navy has to be expanded to include certain police powers in the waters under German jurisdiction and beyond. A decision on a centralised coast guard has not been achieved as the political will is still lacking.

17 Vereinbarung über die Errichtung des Havariekommandos and Vereinbarung über die Bekämpfung von Meeresverschmutzungen of 19 June 2002, in force as from 21 December 2002. For a full text of both agreements see Bundesanzeiger, No. 16 (24 January 2003), 1170. 18 Para. 1(4) of Vereinbarung über die Errichtung des Havariekommandos, ibid. 19 Maritime Assistance Services, IMO Assembly Resolution A.950, adopted on 5 December 2003, IMO Doc. A 23/Res.950, 26 February 2004 (hereafter IMO MAS Resolution). For further information, see Chapter 14 on the Australian model.

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INTERACTION BETWEEN INTERNATIONAL AND NATIONAL EFFORTS Throughout the process of elaborating practical solutions, the project group took into account corresponding developments at international level. The Australian arrangements, especially the guidelines of New South Wales,20 served as a model and were provided by the Australian Harbour Masters Association. These were carefully studied and many elements were adapted to local German conditions. Also the Donaldson Report21 and the British Secretary of State’s Representative (SOSREP) model22 were very helpful in providing an example of an expeditious and professional chain of command. (See Chapter 16 for details on the United Kingdom model.) At the same time, German representatives informed the relevant International Maritime Organization (IMO) and European Union (EU) commissions about the German deliberations and emerging arrangements at the national level. Thus the IMO Guidelines on Places of Refuge for Ships in Need of Assistance23 and the ongoing deliberation on the provision of ﬁnancial security to cover coastal state expenses and compensation issues,24 as well as the resolution on the establishment of maritime assistance services25 were closely followed during the German drafting process. For example, Germany submitted a note in the IMO Maritime Safety Committee (MSC) on the designation by coastal states of places of refuge with two lists of criteria to be observed when identifying possible places of refuge as a precaution and when evaluating actual cases after a request was made.26 Both lists reﬂected the deliberations of the German expert groups. Another international impetus came from the Baltic Sea states, which are cooperating within the framework of the Baltic Marine Environment Protection Commission (or the Helsinki Commission, commonly referred to as HELCOM).27 The HELCOM Special Conference of Transport Ministers of the 20 Guidelines to Assess a Request for a Safe Haven, Transport Safety Bureau, New South Wales Department of Transport, December 2000. 21 Lord Donaldson, Safer Ships, Cleaner Seas Report of Lord Donaldson’s Inquiry into the Prevention of Pollution from Merchant Shipping (London, HMSO, 1994), HMSO Cm2560. 22 Maritime and Coastguard Agency, “The Secretary of States’ Representative”, <www.mcga.gov.uk/c4mca/mcga-environmental/mcga-dops_cp_environmental-counterpollution/mcga-dops_cp_sosrep_role.htm>, 20 June 2005. 23 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/Res.949, 5 March 2004 (hereafter IMO Guidelines). 24 On the agenda of the Legal Committee, cif. NAV 50/2/1, 30 April 2004. 25 IMO MAS Resolution, supra note 19. 26 MSC 74/2/7 of 6 April 2001 and NAV 48/5, 19 March 2002. 27 Convention on the Protection of the Marine Environment of the Baltic Sea Area

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Baltic Sea states meeting in Copenhagen on 10 September 2001 concluded with a package of safety measures for maritime transport and accident management in the Baltic Sea Area, known as the HELCOM Copenhagen Declaration.28 It lists ‘Places of Refuge’ under paragraph XII and requests states to designate places of refuge for their waters and to co-operate in the relevant activities in IMO and EU. The Baltic Sea states continue to co-operate on this issue and HELCOM works on an inventory of places of refuge around the Baltic Sea. More importantly, the EU Directive 2002/59 of 27 June 2002,29 in force as of 5 August 2002, establishing a Community Vessel Trafﬁc Monitoring System (‘monitoring directive’) addressed the problem of non-availability of places of refuge in a general legislative way. This directive, which is part of the EU maritime safety policy,30 establishes a vessel trafﬁc monitoring system for all Community waters with a view to enhancing the safety of maritime transport and improving the response of authorities to accidents or potentially dangerous situations at sea. The directive introduces and harmonises, inter alia, notiﬁcation and reporting systems, operation of automatic identiﬁcation systems (AIS) and voyage data recorders (VDR), casualty investigation, monitoring of dangerous goods, measures in the event of exceptionally bad weather, and the establishment of places of refuge. Article 20 reads:

Places of refuge Member States, having consulted the parties concerned, shall draw up, taking into account relevant guidelines by IMO, plans to accommodate, in the waters under their jurisdiction, ships in distress. Such plans shall contain the necessary arrangements and procedures taking into account operational and environmental constraints, to ensure that ships in distress may immediately go to a place of refuge subject to authorisation by the competent authority. Where the Member State considers it necessary and feasible, the plans must contain arrangements for the provision of adequate means and facilities for assistance, salvage and pollution response.

(Helsinki Convention), 1992, administered by the Helsinki Commission (HELCOM), (entered into force 17 January 2000), <www.helcom.ﬁ>, 20 June 2005. 28 HELCOM, Declaration on the Safety of Navigation and Emergency Capacity in the Baltic Sea Area, HELCOM SEA 4/2001, 2/1, 10 September 2001. 29 Directive 2002/59/EC establishing a Community vessel trafﬁc monitoring and information system and repealing Council Directive 93/75/EEC, European Parliament and the Council of the European Union, O.J.E.U. L 208, 5 August (hereafter Monitoring Directive). 30 See U. Jenisch, “EU Maritime Transport – Maritime Policy, Legislation and Administration”, 3 WMU Journal of Maritime Affairs, No. 1, 2004, 67–83.

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EU directives are binding law for all 25 Member States. States must transform and implement the laws and regulations and administrative provisions necessary to comply with the directive by a ﬁxed date (5 February 2004 in this case). Consequently, all EU Member States are obliged to introduce, as a minimum programme, ‘plans’ and ‘procedures’ for immediate reaction, establish a ‘competent authority’ and decide upon ‘means and facilities for assistance’. In the preamble of this Directive, the issue of ﬁnancial compensation is also addressed, however, not in a legally binding form. The wording in the preamble suggests that: Ports accommodating a ship in distress should be able to rely on prompt compensation for any costs and damage involved in this operation. The Commission should therefore examine the possibilities for introducing an adequate system of compensation for ports in the Community accommodating a ship in distress and the feasibility of requiring a ship coming to a Community port to be adequately insured.

To date there is no EU obligation to establish a ﬁnancial compensation system. Instead, the Commission is working on the so-called ‘Erika III package’ which will probably contain a compensation clause to be published and discussed publicly in the future. The forthcoming Directive(s)31 will contain also an improved decision-making process to respond adequately to requests for places of refuge together with a regime on compensation and some encouragement for port authorities to adopt a positive and pro-active approach towards ships in need of assistance. The new European Maritime Safety Agency (EMSA)32 could be the competent entity to develop new proposals in this respect and to co-ordinate the common approach for places of refuge. As required, in February 2004, Germany reported its arrangements regarding places of refuge taken so far while other Member States missed the deadline. In July 2004 the Commission sent reasoned opinions to Belgium, Greece, France, Luxemburg, the Netherlands, Austria, Finland and the United Kingdom for their failure to communicate their national measures.33 31

Amendment of Directive 2002/59 (supra note 29) on vessel trafﬁc monitoring and information systems. 32 EU Regulation No. 724/2004 of the European Parliament and of the Council of 31 March 2004 amending Regulation No. 1406/2002 establishing a European Maritime Safety Agency, Ofﬁcial Journal L129/1 of 29 April 2004. See also, Willem de Ruiter, “EU – Implementing the Maritime Safety Standards for European Waters”, in: Landesregierung Schleswig-Holstein, Kiel, ed., Sea Our Future – Maritime Safety Conference Baltic 2004, Conference Documentation (hereafter Kiel 2004), 59–61. 33 “Maritme Safety Infringements: Committee Takes Legal Action”, ESPO News, 10.07, July 2004.

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It is interesting to note that the EU directive (still) uses the term ‘ships in distress’, which under IMO terminology is reserved to the safety of life at sea and search and rescue (SAR) operations. Terminology is important when the harmonisation of accident management and pollution control is required at the international level. The correct IMO term of ‘ships in need of assistance’ should, therefore, be used in the future to facilitate the implementation of places of refuge in Europe and elsewhere. Since 1999, the German maritime community, the general public and politicians have become increasingly aware of the issues surrounding places of refuge and a constructive negotiating process has produced practical policy and system results. The work achieved in Germany to date and the plans for future action correspond to the latest IMO and EU initiatives. Some of the policy and system initiatives are examined in more detail below.

THE ‘PHILOSOPHY’ OF PLACES OF REFUGE – SOME BASIC DECISIONS At the outset, the elaboration of places of refuge in Germany gave rise to some basic questions on the ‘philosophy’ of the issue and its possible solutions. The project group examined each of these issues in its deliberations. • In the ﬁrst instance the experts agreed that meaningful (complex) cases of refuge (as distinguished from numerous ‘routine’ incidents) are exceptional, spontaneous, though very rare, events that happen every few years. If possible, the situation should be handled at one of the numerous roadsteads off the coast. In many cases, the rescue services can eliminate the dangerous consequences of accidents such as ﬁre on board or oil and gas leaks in a sheltered roadstead outside a port. In any case high priority should be given to roadsteads as places of refuge.34 Access to a port of refuge will be a last resort. The emotional and understandable fear of administrators, individual citizens, non-governmental organisations and media should be treated in a rational way while every request requires a professional decision on a case-by-case basis. • Transparency of the decision-making process and involvement of all partners is a prerequisite. A maximum of data is required in a minimum of time. Consequently, some kind of a checklist of all criteria and all relevant information would be desirable for the assessment of requests. It is also necessary to ﬁnd a practical way of weighing the pros and cons, leaving emotions aside, in the conﬂict of interest between the traditional legal obligation of

34

German industry has reacted to that option and is offering the concept of a multipurpose barge for combatting complex ship accidents.

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rendering assistance to ships in distress against the interest of the state in the protection of its coasts and ports. In other words, leave the ship in need of assistance at sea (as far away from the coast as possible) or render shelter at the coast or in port and assume the risk of damage to port installations, to people living in the vicinity and to the environment.35 As a leading German newspaper put it, the authorities are confronted with the dispute of the ‘highseas-theory’ versus the ‘coastal theory’.36 Examples of incidents where the decision-making process was crucial to the outcome include the ‘Erika’, the ‘Castor’, the ‘Pallas’ and the ‘Prestige’. In all four cases, decision-making was uncoordinated and delayed and the option to offer a place of refuge was not used. This resulted in enormous environmental and/or ﬁnancial damages. Therefore, when assessing risk, a worst-case scenario and its likelihood should be considered as well. • Consideration was also given to whether special ‘pre-designated’ places of refuge should be prepared in advance with all necessary infrastructure and services available in due time. Alternatively, each and every place, within the limits of its navigational and infrastructure conditions, could become a place of refuge if necessity so warrants. The German model is clearly in favour of the latter model given the geographical situation of Germany with some 40 ports and roadsteads at a close distance to each other and with different areas of specialisation. As a rule, each emergency situation is unique and every port or roadstead may become a place of refuge. No place will be excluded from the list. Consequently there will be no need to ‘pre-designate’ individual places of refuge. Extra investment to build, to maintain or to equip certain places will not be necessary with a few minor exceptions: The German Waterways Administration was asked to prepare additional permanent mooring posts at two offshore roadsteads in the North Sea where ships could be received. Also some dredging in the approaches of ports may be feasible to allow deep-draught ships to enter a port regardless of the tide. • The ﬁnancial aspects are crucial as they trigger emotional and political hesitation at the local or regional level. If a port is selected as a place of refuge, it should not be left to bear the costs resulting from this decision. A compensation scheme with reasonable coverage of all incurred costs, including subsequent costs, is indispensable. As liability and insurance may fail to cover all costs, some instrument of guarantee payment may be needed. Financial security was raised in a January 2004 IMO questionnaire concerning the provisions of existing international and national law dealing with the liability and compensation and their application to places of refuge.37 The Legal

35

Roos, supra note 1, at 3. H. Seitz. “See-gegen Küstentheorie”, Frankfurter Allgemeine Zeitung, 14 December 2002. 37 Cif. NAV 50/2/1 of 30 April 2004, 2. 36

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Committee of IMO noted that the International Group of Protection and Indemnity Clubs (P&I Clubs) is now endeavouring to formulate a standard format for a letter of undertaking to facilitate access to places of refuge in appropriate cases. This would respond to covered liabilities such as pollution and wreck removal.38 Thus ﬁnancial security issues are on the agenda of all relevant fora and a solution seems to be within reach. These considerations lead one to conclude that the choice of places of refuge is a technical rather than a legal matter.

INVENTORY OF PLACES OF REFUGE After discussing these basic questions, the project group began to elaborate an inventory of ports of refuge and of roadsteads/mooring places at the coast or in bays and rivers. To this end a questionnaire was mailed to all port authorities and to the federal Waterway Directorates, which are responsible for waterways and for the navigational uses in the territorial sea.39 Some 40 questions related to navigational, infrastructure and environmental conditions of the place were asked. The following criteria, most of which found their way into the IMO Resolution A.949(23) on ‘Guidelines on Places of Refuge’,40 served as a basis for the questionnaire: • easy access from the sea • location sheltered from prevailing wind and swell directions • water depths, manoeuvring space, possibility to go alongside, lightering means • tidal and current conditions, anchoring ground • availability of dolphins, mooring buoys, pilots, tugs • availability of the required means of assistance (i.e., cranes, pumps, ﬁreﬁghting equipment and personnel, waste disposal and reception facilities, tanks and gas-tight containers, locks, availability of alarm plans) • possible immediate risk to people living in the area • possible problems with local ﬁsheries and/or offshore installations • availability of repair facilities for vessels The return of written answers was quite satisfactory and only in a few cases a second enquiry was necessary – thus showing a cooperative attitude of ports. The results were presented in tabular form and in two charts for the North Sea

38 39 40

Ibid. This survey was never made public. IMO Guidelines, supra note 23, Appendix 2.

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and Baltic Sea coasts of Germany respectively. The major ports of Germany – 21 ports – and 37 roadsteads make up the list, which also includes the locks of major tidal ports and canals that are able to berth ships in distress. The inventory has been handed over to the head of the CCME as a tool for his future work. It will serve as a list of options for consideration during the process of selecting the best place of refuge. The inventory will be updated on a regular basis. The inventory also provides a baseline for the assessment of places of refuge (in the form of contingency plans) as prescribed under Section 3, ‘Guidelines for Action Expected of Coastal States’, of IMO Res. 949(23).41

CHECKLISTS With the help of port authorities, the project group prepared 12 checklists to help ensure that CCME has maximum data on an accident and its consequences. Once again, Australian checklists served as a model. The checklists, when completed, provide all necessary information about the ship, its cargo, the circumstances of the accident, criteria for risk assessments and the speciﬁcs of typical accidents (e.g., ﬁre, explosion, collision, pollution, stability and grounding). The 12 checklists refer to the following subject matters: 1. Information on the ship, owner, crew 2. Information on the cargo 3. Overview of the accident – general information – consultation with other organisations – details on costs and cost recovery – costs at sea or at roadstead – costs in port – cargo related costs – other costs – estimated total costs – coverage of costs 4. Risk assessment for ship remaining at sea 5. Risk assessment for sheltering in a roadstead off the coast 6. Risk assessment for entering a port of refuge 7. Fire 8. Explosion 9. Collision 10. Pollution 11. Stability of the ship 12. Grounding 41

Ibid., s. 3.

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Although every effort was made to list the typical course of events, it is clear that each accident may have its own dynamics. Thus the head of CCME has to be ﬂexible in completing, adapting and using the checklists. Certainly the checklists will help when drafting emergency plans for speciﬁc scenarios and preparing exercises as well. The head of CCME has been encouraged to meet and discuss speciﬁc details with individual port authorities, vessel trafﬁc separation centres, pilot brotherhoods, ﬁre-ﬁghting services, etc., in order to become familiar with local authorities, who in return have an opportunity to familiarise themselves with the new procedures.

FRAMEWORK AGREEMENT ON PLACES OF REFUGE The actual decision on a place of refuge is the most salient issue to be resolved in practice. The federal Ministry of Transport and the corresponding entities of the ﬁve coastal Länder of northern Germany42 recently concluded a legal agreement on the allocation of places of refuge in the case of complex casualties. The short agreement of only eight articles and a preamble was necessary because the legal autonomy of local or privately owned ports may – under German constitutional law – be restricted only through binding legal rules. The agreement was signed in January 2005 and entered into force on 11 March 2005. The preamble of the agreement stresses the need for an expeditious and careful decision on places of refuge on the basis of weighing the interests of all stakeholders. A verbal reference in the preamble makes it clear that the agreement is meant to be in compliance with Article 20 of EU Directive 2002/59 urging the Member States to establish trafﬁc monitoring and information systems including a network of places of refuge in the Community. Likewise the preamble refers to the relevant IMO guidelines. Article 1 sets the geographical limits by deﬁning the area of application as the German exclusive economic zone, the waterways of the territorial sea and internal waters, including all ports that are accessible for sea-going ships. Under Article 2, the deﬁnition of ‘complex casualty’ distinguishes between cases of ‘normal’ or ‘minor’ casualties. A ‘complex casualty’ involves a danger for a multitude of human lives, the environment, the natural resources of the sea, property of signiﬁcant value or the safety and ease of navigation when the normal instruments at hand are insufﬁcient to handle the situation, or a centralised reaction is required. Article 3 provides that the head of CCME is responsible for the decision and assignment of a place of refuge. He has to co-operate closely with the port 42

Bremen, Hamburg, Mecklenburg-Vorpommern, Niedersachsen, and SchleswigHolstein.

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authority or the waterway directorate in whose area the ship shall be received. If a consensus among these competent partners cannot be achieved, the head of the CCME has the ﬁnal word. He is entitled to overrule conﬂicting views. The guidelines for the decision-making process, its criteria and the entities to be consulted shall be elaborated jointly by the signatories of this agreement, i.e., the federal and the ﬁve Länder ministries (Article 4). CCME, the port authorities and the waterway directorates jointly develop accident scenarios and local emergency plans based on these guidelines (Article 5). The federal government is responsible for agreements on the procedure of allocation of places of refuge with neighbouring states. Article 7 regulates the ﬁnancial aspects of non-recoverable costs. As a rule, the costs will be settled by the regular insurance of the ship or shipowner, by P&I Clubs or by bank guarantees. However, the international conventions43 leave substantial gaps in damages which may not covered, leaving aside the risk of lengthy court procedures over such questions as: What is a pure economic loss? What is pollution damage? What is a loss of proﬁt? Local authorities need a certain assurance of being adequately secured against the risk of non-recoverable costs. Here the agreement offers four categories of costs for compensation: 1. 2. 3. 4.

The repair of piers, buildings, vehicles, equipment and installations in ports The ﬁnal disposal of harmful substances and wastes The restoration of the place of refuge and its surroundings Subsequent economic losses, however, only within the limits of domestic public law

In all four cases the burden-sharing scheme will be split on a 50–50 basis between the federal government and the ﬁve Länder governments: • • • • • •

federal government 50% Bremen 2.5% Hamburg 6% Mecklenburg-Vorpommern 8.5% Niedersachsen 18% Schleswig-Holstein 15%

43

International Convention on Civil Liability for Oil Pollution Damage, London, 29 November 1969, 973 U.N.T.S. 3, as amended by the protocols of 1976 and 1992; International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, London, 18 December 1971, 1110 U.N.T.S. 57, as amended by the protocols of 1976, 1984, 1992 and 2003 (Supplementary Fund); International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, London, 2 May 1996, 35 I.L.M. 1406 (not yet in force); International Convention on Civil Liability for Bunker Oil Pollution Damage, London, 27 March 2001, IMO Doc. LEG/CONF.12/19, 27

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The Federal Government, i.e., the legal service of the waterway directorates, will be charged with making up the accounts and suing for the claims.

NATIONAL GUIDELINES The procedural guidelines, mentioned in the preamble of the agreement, are designed to support the work of the persons and institutions involved in the decision-making process. This list is restricted to CCME, port authorities, waterway directorates and local ofﬁces, the captain, the owner/operator and the salvor. The port authorities and the waterway ofﬁces continuously provide the head of CCME with relevant detailed data, as they did for the inventory. CCME will draft individual emergency plans for each place of refuge that will be updated continuously and made available to all partners. The decision-making process to be followed for assessing and approving a place of refuge is divided into six steps: 1. Gathering information and data about the ship and its cargo, if necessary by experts boarding the ship 2. Conducting an individual assessment of the casualty 3. Risk assessment of the ship remaining at sea vs. moving the ship to a place/port of refuge, with documented reasons 4. Selection of a place of refuge from the list of emergency plans after reviewing all relevant risks 5. Consensual decision with the persons involved; the head of CCME decides if a consensus fails 6. Allocation of place of refuge A ﬁnal section of the guidelines deals with measures to be taken after the refuge situation is over, e.g., ﬁnal disposal of ship or cargo. At that stage CCME’s duties end, and the competent authorities have to continue in their own capacity. The local administration or environmental services will be responsible. All legal affairs will, however, continue to be provided through the legal service of the federal Waterways and Shipping Directorate.

March 2001 (not yet in force); International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, London, 18 December 1971, 1110 U.N.T.S. 57, as amended by the protocols of 1976, 1984, 1992 and 2003 (Supplementary Fund) (in force since 3 March 2005).

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FINAL REMARKS Much has been said about the organisational framework of how a decision is reached in Germany on places of refuge in the case of major accidents at sea. But there are also economic or industrial aspects, such as hardware for combating marine pollution that might also be needed. The decision to use a port or roadstead as a place of refuge only makes sense if the place offers a reasonable chance to perform the necessary work. Roadsteads as a place of refuge have to be accessible for personnel and equipment from shore. Repair yards and enterprises specialised in the handling of dangerous materials may have an active business interest in rendering assistance to ships in need. A certain amount of equipment prepositioned ‘on demand’ in the right place will be helpful in the interest of minimising the risks to inhabitants, ecology and the economy. Availability of equipment and/or its quick transfer to the place of the accident is crucial and some hardware should be available for use on short notice. A mobile working platform may be needed, suitable for heavy equipment such as cranes, power supply, ﬁre engines and pumps, oil combating and decontamination materials, tanks for lightering and cargo transfer, helicopters and ﬁrst aid. Therefore, the group of German salvage and tug operators, which operate the chartered emergency tugs mentioned above, offered the concept of upgraded barges, which could serve as a working platform in place.44 The barges can be moored to form a pier, a second barge may be used as a transportation device. The barge concept also allows for relatively safe working conditions for the rescue personnel, who may need a safe base and an escape facility if chemical materials or explosives get out of control. The barges have a dual use, i.e., they can be used for normal storage or working operations in ports as well as in emergencies. This may prove to be an economically attractive model for the ﬁnance, construction and operation of these barges or any other device designed to serve as a mobile emergency working platform. While the technical aspects of providing refuge are being resolved satisfactorily, some weak points persist in the organisational and decision-making structure of the German authorities involved in the refuge process. Compared to the strong role of on-scene commanders that may exist in the coast guard organisations of other states, the German model is fragmented. The head of CCME remains obliged to take into account both federal and Länder interests while coordinating operations. The command chain from CCME to the various federal and Länder police services and pollution-combating units is complicated and split into too many lines of communication. For historical reasons, the

44

C. Wibel, “Places of Refuge”, Paper presented at the 4th Congress of the International Harbour Masters’ Association, Bremen, 24 May 2004.

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German navy is legally not allowed to perform police tasks in the ﬁeld of civil safety and security, although a special legal pattern of co-operation between different state authorities exists that would allow some help from the military subject, however, to other military priorities. The creation of a centralised German coast guard under federal command is still under discussion. Thus the German CCME is widely regarded as a ﬁrst step in the right direction. In the long run, it is hoped, CCME will become part of the command structure of a German coast guard. It is in the nature of things (ratione materiae) that maritime casualties always bear a ﬁnal risk. Consequently places of refuge can never be regulated in a watertight guarantee. Yet the danger of over-regulation has to be avoided. Instead, the competent authority should be left with discretionary liberty to react in a reasonable way. Accident management can only be successful if conﬁdence, resources and ﬂexibility coincide under one leadership.45 The German concept of places of refuge has been elaborated successfully in a relatively short period of time. It was possible to achieve consensus on most elements proposed at expert level very rapidly. Valuable inputs from other states and from the current international debates in IMO and EU were incorporated into German initiatives The existing written texts of agreements and guidelines on places of refuge are short yet comprehensive. A ﬁnancial compensation scheme is in place. The intensive level of co-operation and consultation, which is so typical of a federal system, resulted in a relatively centralised decision-making structure for the allocation of places of refuge. Thus, in Germany a viable regime for places of refuge exists.46

45

See U. Jenisch, “Überlegungen zum Nothafenrecht”, Hansa, No. 1, 2001, 18. See also, W. Erbguth and U. Jenisch, “Maritime Safety in the Baltic Sea Area 2003, Final Report of the Baltic Sea Institute for Maritime and Environmental Law, Rostock University”, in: Maritime Safety in the Baltic Sea Area, Vol. III, supra note 12, at 179. 46

Chapter 19 The United States’ Approach to Implementing the IMO Guidelines on Places of Refuge Paul Albertson* INTRODUCTION The shipment of oil by sea is not without peril. Major marine casualties such as the M/T ‘Torrey Canyon’ in 19671 and the M/T ‘Exxon Valdez’ in 19892 are but

* The views expressed in this paper are those of the author and do not necessarily represent the views of the United States Coast Guard, Department of Homeland Security, or Government of the United States. 1 On 18 March 1967, the Liberian tanker ‘Torrey Canyon’, which in 1967 was one of the largest vessels in the world, ran aground off the southwestern coast of England, spilling over 100,000 tons of oil that eventually washed ashore on English and French beaches, causing massive environmental and economic damage. The scale of pollution was unprecedented in world history, see C. de la Rue and C. B. Anderson, Shipping and the Environment: Law and Practice (London & Hong Kong, LLP Reference Publishing, 1998), at 11 and 835. 2 On 24 March 1989, the U.S. tanker Exxon Valdez ran aground in Prince William

489 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 489–503. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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two examples of the potential for large-scale pollution from ships. Of particular relevance are the cures such casualties have inspired. The ‘Torrey Canyon’ exposed shortcomings in both public and private law, which resulted in the International Convention on Civil Liability for Oil Pollution Damage (CLC), 19693 and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (Fund Convention), 1971,4 and the ‘Exxon Valdez’ is widely known as the genesis for the Oil Pollution Act of 1990 (OPA 90).5 These landmark reforms have signiﬁcantly reduced oil pollution from ships over time, largely through ﬁnancial liability regimes. Despite their success, however, accidents still happen. Existing liability schemes have not eliminated (and perhaps arguably cannot eliminate) the potential for large-scale pollution from ships, as demonstrated by the 2002 sinking of the M/T ‘Prestige’ (see insert). The way in which the ‘Prestige’ incident unfolded and, in particular, the denial of safe refuge for the tanker, brought to light potentially conﬂicting interests of two main parties in the places of refuge issue. On one side of the issue stands the prerogative of a ship in need of assistance to seek a place of refuge; and on the other, the prerogative of a coastal state to protect its coastline. If poorly managed, these conﬂicts can act like a ‘knot in the line’ toward efforts to ensure maritime safety and environmental protection. In the case of the ‘Prestige’, the knot tightened until ﬁnally cut by the breaking of a loaded tanker at sea. To loosen – perhaps even untie – the knot, the International Maritime Organization (IMO) Guidelines on Places of Refuge for Ships in Needs of Assistance provide a framework for assimilating various interests and factors inherent to ‘Prestige’-type scenarios.6 For the United States, implementation of the IMO Guidelines is achieved largely through the National Response System,7 which shall serve as the context for discussion in this chapter.

Sound, Alaska, spilling 11 million gallons of oil, affecting more than 1,300 miles of shoreline. The spill was the largest in U.S. history, ibid., at 55. 3 International Convention on Civil Liability for Oil Pollution Damage, London, 29 November 1969, 973 U.N.T.S. 3, as amended by the protocols of 1976 and 1992 (hereafter CLC). 4 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, London, 18 December 1971, 1110 U.N.T.S. 57, as amended by the protocols of 1976, 1984, 1992 and 2003 (hereafter Fund Convention). 5 Oil Pollution Act of 1990, as amended through P.L. 106–580, 29 December 2000. 6 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/Res.949, 5 March 2004. 7 See National Response Team (NRT) website, <www.nrt.org>, 28 July 2005.

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M/T ‘Prestige’ On 13 November 2002, the M/T ‘Prestige’ was underway with 77,033 tonnes (>20,000,000 US gallons) of heavy fuel oil no. 2 (M100), 742 tonnes (>200,000 US gallons) of IFO-380, and 41 tonnes (~12,500 US gallons) of marine diesel. When approximately 25 miles off the west coast of Galicia, Spain, the ‘Prestige’ got caught in a severe storm and rapidly developed a 24-degree list to starboard due to ﬂooding of the #2 aft starboard and #3 starboard wing tanks, which had sustained hull damage. Because of the list, fuel oil began spilling from butterworth openings onto the main deck and into the water. The ‘Prestige’ also lost propulsion and began to drift. The crew was evacuated by helicopter, while the master, chief mate and chief engineer remained aboard to control the vessel. To right the ‘Prestige’ and stop the spillage of oil, the master ballasted the #2 aft port and #3 port wing tanks, which righted the ship and stopped the outﬂow of oil. This also added stress to the hull.8 The ‘Prestige’ requested a place of refuge in order to transfer cargo and make repairs. However, the request was denied. Instead, Spanish authorities ordered the tanker to sea. The ‘Prestige’ was towed seaward until November 19, when it broke in two and sank approximately 130 miles off the coast of Spain. Most of the tanker’s load, approximately 17,000,000 gallons, is estimated to have spilled from the ‘Prestige’, affecting over 600 miles of coastline, ﬁshing grounds, and wildlife. At a depth of 3,500 meters (11,483 feet), the ‘Prestige’ continued to discharge oil, contributing to an overall slick that drifted in and around the Bay of Biscay and the westernmost reaches of the English Channel, ultimately contaminating the shorelines of six countries.

OVERVIEW OF THE NATIONAL RESPONSE SYSTEM Following the ‘Torrey Canyon’ catastrophe, President Lyndon Johnson ordered the Departments of the Interior and Transportation to examine the nation’s ability to respond to spills of similar magnitude.9 As a result, the National Response System (NRS) ‘was developed to co-ordinate all government agencies with responsibility for environmental protection, in a focused response strategy for the immediate and effective clean up of an oil or hazardous sub-

8

de la Rue and Anderson, supra note 1, at 835. J. B. Ellis II, et al., “Establishment of Area Committees and Development of Area Contingency Plans”, Oil Spill Law Information Service, Thompson Publishing Group, Appendix 2.1 (November 1992), 8. 9

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stance discharge’.10 Through this overarching objective, the National Response System is a logical framework for implementation of the IMO Guidelines in the United States. The National Response System provides for effective management of pollution threats to the environment through a network of people, plans and resources. As represented by Figure 1 above, the National Response System is a three-tiered system of federal, state and local governments working together. It is designed to support the predesignated Federal On-Scene Co-ordinator (FOSC) in co-ordinating the actions of federal, state and local governments, as well as industry and the responsible party, in response to pollution incidents. Each tier is sufﬁciently integrated with the next so that support to the Federal On-Scene Co-ordinator can be scaled to ﬁt the needs of a response. For example, where a place of refuge request involves more than one Federal On-Scene Co-ordinator jurisdiction, the Regional Response Team can be activated to assist in overall co-ordination or to procure additional resources through its member agencies. The planning, preparedness and response functions of the National Response System for pollution incidents of all sizes and kinds encompass a wide range of pre- and post-incident activities. At the national level, the National Response Team (NRT) co-ordinates the activities of the National Response System. The National Response Team is comprised of 16 federal agencies, each with

10 National Response Team agencies and their roles are described in the National Contingency Plan, 40 C.F.R. 300.175 (hereafter NCP), <www.access.gpo.gov/nara/cfr/ waisidx_99/40cfr300_99.html>, 8 June 2005.

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responsibilities and expertise in various aspects of emergency pollution response. With nationwide responsibilities for inter-agency planning, policy, and co-ordination, the National Response Team ensures the nation’s overall readiness for pollution incidents of all sizes and kinds. Prior to an incident, the National Response Team provides policy guidance and information and, during an incident, it provides technical advice and access to resources and equipment through its member agencies. The United States Environmental Protection Agency (EPA) chairs the National Response Team, and the United States Coast Guard (USCG) serves as vice-chair.11 The National Response Team is also responsible for maintaining the ‘National Oil and Hazardous Substances Pollution Contingency Plan’, commonly referred to as the National Contingency Plan (NCP).12 The NCP is codiﬁed in federal regulation,13 which provides ‘the organizational structure and procedures for preparing for and responding to discharges of oil and releases of hazardous substances, pollutants, and contaminants’.14 The National Contingency Plan delineates decisionFigure 2: RRT Areas

Source: NRT, 2005 11 Ibid., at §300.175(b); National Response Team, “National Response Team Brochure” (hereafter NRT Brochure), <www.nrt.org>, 1 August 2005. 12 Ibid., Part 300 (1999). The National Contingency Plan continues to function under the recently released National Response Plan as the hazard-speciﬁc mechanism for oil and hazardous material spills. 13 Ibid., Part 300.1, Purpose and Objectives. 14 Ibid., Part 300.5, Deﬁnitions. The term discharge generally signiﬁes the spillage of oil, whereas the term release signiﬁes the spillage of hazardous substances, pollutants, or contaminants (hazardous material).

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making authorities and provides for federal, state, and local agency co-ordination in the planning, preparedness, and response process. For purposes of the NCP, discharge [of oil] also means ‘substantial threat of discharge’.15 Similarly, release [of hazardous substances, pollutants, and contaminants] also means threat of release. Consequently, authorities and procedures described in the NCP address a wide range of scenarios involving actual or potential oil and hazardous material spills, which includes the threat of spills from ships in need of assistance. Coastal environments of the United States span the North American continent and the Paciﬁc Islands and are geographically diverse, ranging from Arctic Alaska to the tropical Caribbean. Accordingly, the geographic breadth of the United States provides special challenges for developing spill response plans. To help meet these challenges, 13 Regional Response Teams (RRT) provide inter-agency co-ordination, policy development, and support activities at the regional level (see Figure 2).16 RRT membership mirrors the National Response Team, with the addition of representatives from state, local and tribal governments. The EPA and USCG co-chair each standing Regional Response Team, Figure 3: Coast Guard Districts

Source: USCG, 200017

15

The standard federal regional boundaries are deﬁned in 40 C.F.R. 300.105(c)(1), ﬁg. 2. 16 NRT Brochure, supra note 11. 17 United States Coast Guard, “21st Century Preview”, <www.uscg.mil>, January 2001.

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which develops a Regional Contingency Plan (RCP) describing policies and procedures for pollution response within its area of responsibility.18 Similarly, the USCG divides its area of responsibility into districts. Figure 3 below shows the nine Coast Guard districts and their boundaries. For each district, the Chief of Marine Safety, Security, and Environmental Protection serves as RRT co-chair alongside the Regional Administrator for corresponding EPA regions (Figure 2). Each Coast Guard district is subdivided into Captain of the Port (COTP) zones (i.e., jurisdictional boundaries), which are codiﬁed in federal regulation.19 Forty-ﬁve Captain of the Port zones cover the entire United States and its territories, with seaward boundaries that extend to the limits of the exclusive economic zone. In general, the Captain of the Port also serves as the pre-designated Federal On-Scene Co-ordinator, whose jurisdictional boundaries align with the Captain of the Port. The roles of these decision-making authorities with respect to places of refuge are examined in more detail below. At the COTP/FOSC level, an Area Committee develops and maintains through inter-agency co-ordination an Area Contingency Plan (ACP) for the Federal On-Scene Co-ordinator’s area of responsibility. Formally established by the Clean Water Act, as amended by OPA 90,20 Area Committees are the primary venue for planning, preparedness, and response with respect to places of refuge. They are made up of qualiﬁed personnel from federal, state, and local agencies with responsibilities for the area’s environmental integrity. Interagency co-ordination may include stakeholders from other committees at the local level, such as the Harbor Safety Committee (headed by the Captain of the Port) and the Area Maritime Security Committee (headed by the Federal Maritime Security Co-ordinator). An Area Contingency Plan works in conjunction with the Regional Contingency Plan and National Contingency Plan by providing area-speciﬁc information on stakeholders, processes, environmentally sensitive areas, resources, and other data to form the basis for incident management and decision-making.

18 Navigation & Navigable Waters, 33 C.F.R. 3, Districts, Marine Inspection Zones, and Captain of the Port Zones. 19 Clean Water Act, as amended by OPA 90, 33 U.S.C. 1321(j)(5), Area Committees and Area Contingency. 20 NRT Brochure, supra note 11. The term coastal zone means all United States waters subject to the tide, United States waters of the Great Lakes, speciﬁed ports and harbors on inland rivers, waters of the contiguous zone, other waters of the high seas subject to the NCP, and the land surface or land substrata, ground waters, and ambient air proximal to those waters. Conversely, inland zone means the environment inland of the coastal zone excluding the Great Lakes and speciﬁed ports and harbors on inland rivers.

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DECISION-MAKING AUTHORITIES As the implementing authority for the National Response System, the National Contingency Plan divides Federal On-Scene Co-ordinator jurisdiction into two broad zones: inland and coastal. The Federal On-Scene Co-ordinator is the federal ofﬁcial pre-designated by EPA [for the inland zone] or by USCG [for the coastal zone] to co-ordinate and direct responses under the Clean Water Act, as amended by OPA 90, and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (hereafter CERCLA). The coastal zone,21 which is of primary interest here, includes all navigable waters of the United States and extends seaward to the limits of the exclusive economic zone. Roles and responsibilities of the Coast Guard Federal On-Scene Co-ordinator complement the Coast Guard’s larger task of ensuring marine safety, security, and environmental protection for navigable waters of the United States. Accordingly, the Coast Guard assumes a lead role in implementing the IMO Guidelines, which includes ultimate decision-making authority on place of refuge scenarios. This authority is asserted at the COTP/FOSC level through various laws, such as the Clean Water Act, as amended by OPA 90, the Comprehensive Environmental Response, Compensation and Liability Act, and the Ports and Waterways Safety Act, to name just a few. At this level, the Coast Guard exercises a robust set of complementary authorities in four functional areas: Captain of the Port, Federal On-Scene Co-ordinator, Federal Maritime Security Co-ordinator, and Ofﬁcer in Charge, Marine Inspection. Each of the four functional areas is discussed in further detail below.

Captain of the Port The Captain of the Port administers perhaps the broadest set of missions among the functional areas mentioned and plays a prominent role in responding to requests for a place of refuge. The Captain of the Port is responsible for enforcing laws and regulations designed to: • Minimise deaths, personal injuries, and property loss or damage associated with vessels engaged in commercial, scientiﬁc, or exploratory activity in the marine environment • Safeguard the nation’s ports, waterways, port facilities, vessels, persons, and property in the vicinity of the port, from accidental or intentional destruction, damage, loss, or injury

21

USCG, “General Considerations”, in: U.S. Coast Guard Marine Safety Manual, Vol. VI, Chap. 1 (June 1986), 1.

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• Protect navigable waters and adjacent shore areas of the United States and adjacent resources from environmental harm, and • Prevent pollution of the marine environment from accidental or intentional discharges of oil, hazardous substances, dredged spoils, sewage, and wastes from vessels22 To meet these responsibilities, the Captain of the Port exercises authority pursuant to several statutory authorities. Of particular signiﬁcance are the Ports and Waterways Safety Act23 and its subordinate regulations, which allow the Captain of the Port to take action to protect the safety of navigation and the marine environment. For a ship in need of assistance, the Captain of the Port is responsible for ascertaining the vessel’s condition and issuing lawful orders consistent with entry to a place of refuge and protection of the coastal zone.24 This includes authority under the Ports and Waterways Safety Act to control a vessel’s movement (i.e., order a vessel to move or anchor in navigable waters of the United States for the safety of the vessel or marine environment).25 To ensure protection of the coastal zone, the Captain of the Port may direct a ship in need of assistance to a speciﬁc destination other than the location requested.26

Federal On-Scene Co-ordinator Under the Clean Water Act, as amended by OPA 90, the Federal On-Scene Coordinator must ensure effective and immediate removal of actual or threatened

22

Ports and Waterways Safety Act, 33 U.S.C. 1221, et seq., Ports and Waterways Safety Program. 23 Ibid. 24 Ports and Waterways Safety Act, 33 U.S.C. 1223(b), Special powers; 33 C.F.R. 160, Subpart B, Control of Vessel & Facility Operations. 25 Ibid. 26 Clean Water Act, as amended by OPA 90, 33 U.S.C. 1321(c), Federal Removal Authority. Similarly, under CERCLA (42 U.S.C. 9604(a), Response Authorities), whenever (A) any hazardous substance is released or there is a substantial threat of such a release into the environment, or (B) there is a release or substantial threat of release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare, the President [through the FOSC] is authorised to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time (including its removal from any contaminated natural resource), or take any other response measure consistent with the national contingency plan which the President [through the FOSC] deems necessary to protect the public health or welfare or the environment.

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discharges of oil and hazardous substances.27 In meeting this requirement, the Federal On-Scene Co-ordinator exercises broad authority, which includes the removal and/or destruction of a vessel discharging or threatening to discharge oil or hazardous substances by whatever means necessary.28 Consequently, the Federal On-Scene Co-ordinator plays a prominent role in the decision-making process where a discharge or substantial threat of discharge from a ship in need of assistance endangers navigable waters of the United States, its adjoining shorelines, and/or the exclusive economic zone. More speciﬁcally, the Federal On-Scene Co-ordinator plans and co-ordinates pollution removal activities on scene. The Federal On-Scene Co-ordinator may call upon a wide range of support, such as the Coast Guard National Strike Force, the United States Navy Supervisor of Salvage, the National Oceanic and Atmospheric Administration, or the United States National Fish and Wildlife Service, to name a few, for assistance in planning, co-ordinating, and executing removal activities. The Federal On-Scene Co-ordinator may also call upon the Area Committee, Regional Response Team, National Response Team, and any other agency of the United States government for trained personnel, equipment, and scientiﬁc support to ensure effective and immediate removal.29 In addition, the Federal On-Scene Co-ordinator may employ a variety of pre-arranged service contracts, such as those with professional salvors and clean-up contractors to ensure effective response operations. In short, the Federal On-Scene Co-ordinator exercises signiﬁcant authorities to achieve immediate and effective removal of pollution threats, making this a principal decision-making authority in a place of refuge scenario.

Federal Maritime Security Co-ordinator The Marine Transportation Security Act of 2002 amended Captain of the Port authorities to include the role of Federal Maritime Security Co-ordinator (FMSC).30 The Federal Maritime Security Co-ordinator is charged with coordinating maritime and port security in the United States, which includes overseeing the Area Maritime Security Committee in the development of an Area Maritime Security Plan. Given the potential for terrorist attacks against the

27 Clean Water Act, as amended by OPA 90, 33 U.S.C. 1321(c), Federal Removal Authority; National Contingency Plan, 40 C.F.R. 300.305(d)(1), Phase II-Preliminary assessment and initiation of action; §300.322(b), Response to substantial threats to public health or welfare of the United States; §300.415(c)(1), Removal action. 28 Ellis, et al., supra note 9, at 8. 29 Marine Transportation Security Act of 2002, Chapter 701; 33 C.F.R. 103, Maritime Security: Area Maritime Security. 30 Title 46 U.S.C., Subtitle II-Vessels & Seaman.

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United States, it is likely that those responding to a place of refuge request will also need to consider issues related to maritime and national security. Response to security threat information within the maritime domain is co-ordinated via the Federal Maritime Security Co-ordinator, who may possess classiﬁed information that signiﬁcantly alters or affects the decision on a place of refuge request.

Ofﬁcer In Charge, Marine Inspection The Ofﬁcer In Charge, Marine Inspection (OCMI) ensures compliance with various laws and regulations pertaining to the safe construction and operation of vessels. Although not a central decision-making authority in response to a place of refuge request, the Ofﬁcer In Charge, Marine Inspection may be consulted where a vessel’s regulatory compliance or structural integrity is a concern.31 The above four functions and their respective authorities are distinct, but highly inter-related. Within each Captain of the Port zone, they are administered by a single command, where the commanding ofﬁcer serves as COTP. In some instances, all four functions are vested in the commanding ofﬁcer. In others, certain functions are delegated. In any case, these authorities operate within their respective purviews and in concert with each other. While this collective decision-making authority presides over each place of refuge scenario, higher authorities may intervene where national security or national defence issues are involved.

PLANNING Clearly, a place of refuge scenario can pose difﬁcult questions. Ideally, decision-makers and stakeholders reach objective consensus on the majority of relevant issues in the calmness of pre-incident planning, leaving a sufﬁciently narrow range of factors to consider during the heat of a response. As noted above, Area Committees are the primary venue for addressing these issues and incorporating agreements reached on the criteria and process to be used for decision-making into their Area Contingency Plan. To facilitate the decisionmaking process during a response, an Area Contingency Plan may include a pre-assessment of potential refuge locations within its area of responsibility. In

31 Endangered Species Act of 1973, as amended through P.L. 107–136, 24 January 2002; Coastal Zone Management Act of 1972, as amended through P.L. 106–580, 29 December 2000.

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Source: NRT, 2005

the United States, pre-assessments must consider conservation laws, such as the Endangered Species Act or the Coastal Zone Management Act,32 and other stakeholder issues germane to the area. It is worth noting that for the United States, pre-assessment is distinct from, and preferred over, pre-designation. This is an important point. The unique facts and circumstances in each case do not necessarily lend themselves to pre-designation schemes. Instead, a range of options achieved through pre-assessment retains vital ﬂexibility for decisionmakers during response. Although pre-assessment does not appear in legislation, it is an ofﬁcial position adopted by Coast Guard policy-makers.

RESPONSE Decision-makers respond to place of refuge requests on a case-by-case basis. In response to an actual or threatened discharge of oil or hazardous substance from a ship in need of assistance, the National Response System (in addition to supporting the Federal On-Scene Co-ordinator) incorporates a uniﬁed command as the decision-making body, which typically consists of the Federal OnScene Co-ordinator, State On-Scene Co-ordinator (SOSC), and Responsible Party (RP). The uniﬁed command, as used within the Incident Command System (ICS) (Figure 4), not only co-ordinates the efforts of many jurisdictions, but also provides for and assures joint decisions and execution on response

32 The Federal On-Scene Co-ordinator is required by law to consult with senior lead agency ofﬁcials and readily available authorities, government authorities, affected natural resource management agencies and natural resource trustees regarding response actions that involve their respective jurisdictions. For example, the FOSC must consult with affected natural resource trustees concerning appropriate removal actions (40 C.F.R. 305). Likewise, a removal is considered complete when determined by the FOSC in consultation with the Governor or Governors of affected states (40 C.F.R. 320).

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objectives, strategies and tactics, required consultation,33 and public communications. This facilitates complementary efforts and ensures those outside the uniﬁed command hear one voice from the incident management team – a critical factor in maintaining the conﬁdence of the public and higher authorities. The ICS structure, as represented in Figure 4, is scalable. Each functional area, such as the uniﬁed command or operations section, may be expanded or reduced to meet the needs of a response, and stakeholders join the ICS organisation with their respective authorities intact. In Figure 4, a sixth functional area – intelligence – augments the traditional ICS structure. The intelligence function – collection, analysis, and sharing of security-related information – may be added depending on the situation at hand. Normally, decisions are consensus-based. However, exigent circumstances may call for decisions prior to consultations with all stakeholders, let alone activation of a uniﬁed command. While the Coast Guard is not obligated to provide a place of refuge to a ship in need of assistance, United States laws and regulations ensure decision-makers take appropriate steps to achieve maritime safety, security, and environmental protection.34 In discharging its responsibilities, the United States Coast Guard retains ultimate decision authority throughout the uniﬁed command decision-making process. In general, while a state may impose its own liability and compensation regime by statute or regulation (in addition to that provided by OPA 90 at the federal level), they may not directly over-ride a Captain of the Port order granting a ship’s request for a place of refuge through the medium of imposing impossible ﬁnancial guarantee

33

USCG, supra note 21; Ports and Waterways Safety Act, supra note 22; Clean Water Act, supra notes 26 and 27. 34 Ellis, et al., supra note 9, at 8: ‘The [F]OSC has the ultimate authority in a response operation and will exert this authority only if the other members of the uniﬁed command are not present or are unable to reach consensus within a reasonable time frame’. The Coast Guard FOSC may take emergency actions pursuant to several statutory authorities: Clean Water Act, as amended by OPA 90, 33 U.S.C. 1321(c)(1) & (2), Federal Removal Authority; Clean Water Act, as amended by OPA 90, 33 U.S.C. 1321(e)(1)(B), Civil Enforcement; Comprehensive Environmental Response, Compensation, & Liability Act, 42 U.S.C. 9604(a), Response Authority; National Contingency Plan, 40 C.F.R. 300.305(d), Phase II-Preliminary assessment and initiation of action; §300.310(a), Phase III-Containment, countermeasures, cleanup, and disposal; §300.317, National Response Priorities; §300.322, Response to substantial threats to public health or welfare of the United States; §300.324, Response to worst case discharges; § 300.415(c), Removal Action. Similarly, the Coast Guard COTP may take emergency actions pursuant to several statutory authorities, most notably: Ports and Waterways Safety Act, 33 U.S.C. 1223(b), Special Powers; Navigation & Navigable Waters, 33 C.F.R. 6.04, General Provisions.

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conditions. In short, while the norm is consultation and consensus-based decision-making, in an emergency, the Coast Guard may take action to grant or deny a place of refuge prior to consulting affected stakeholders.35 This, of course, underscores the importance of pre-incident planning.

LIABILITY International laws on liability and compensation have less relevance to a place of refuge request in United States waters and ports because the United States is not a party to the CLC and the Fund Convention and their protocols.36 The United States liability and compensation legal regime for both threatened and actual discharges of oil is set forth in Title I of OPA 90, including the availability of the Oil Spill Liability Trust Fund (the Fund) to the Federal On-Scene Co-ordinator for response to actual or potential oil spills.37 To ensure immediate and effective response, OPA 90 established an emergency fund of up to US$50 million each year.38 To the extent US$50 million is inadequate, Section 323 of the Maritime Transportation Security Act of 2002 as it amended OPA 90, authorises the Coast Guard an advance up to US$100 million from the Fund for removal activities.39 These thresholds are more than sufﬁcient for the vast majority of actual or threatened spills. On the other hand, extraordinary cases can easily overwhelm them. In the case of the ‘Prestige’, overall cost for oil recovery from the sunken bow section (13,400 tons recovered) is estimated at US$120 million,40 and this is only part of the total clean up. The Spanish government estimated total clean up costs at US$1.06 billion41 in early 2003.42

35

CLC, supra note 3; Fund Convention, supra note 4. Oil Pollution Act of 1990, Sec. 1012 (33 U.S.C. 2712); National Contingency Plan, 40 C.F.R. 300.335, Funding. 37 Oil Pollution Act of 1990, Sec. 6002(b) (33 U.S.C. 2752(b)). 38 Maritime Transportation Security Act of 2002, Sec. 323. 39 M. Girin, “European Experience in Response to Potentially Polluting Shipwrecks”, Marine Technology Society Journal, Vol. 38, No. 3, 2004, 24. 40 Approximately €1 billion, January 2003, see U.S. Customs, “Daily Rates for Countries Not On Quarterly List for January 2003”, Customs Bulletin and Decisions, Vol. 37, No. 9 (February 2003). 41 M. X. Vázquez and M. V. A. Prada, “Economic Effects of the Catastrophe of the Prestige: An Advance”, Vigo (January 2003). 42 See, American Bureau of Shipping (ABS), “Subsequent Action,” Prestige Casualty – Information Update No. 3, American Bureau of Shipping (20 November 2002); ABS, “Technical Analysis Related to the Prestige Casualty on 13 November 2002,” (28 February 2003); D. Salt, “An Overview of the Prestige Oil Spill Incident,” Oil Spill Response Limited, Southampton, England (February), 2003; Centre of Documentation, 36

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Consequently, from a purely economic view, there are signiﬁcant incentives for avoiding outcomes similar to the ‘Prestige’, which gives rise to bringing a vessel into a place of refuge, where appropriate, to avoid widespread pollution.

CONCLUSION The lesson in the ‘Prestige’ is that the threat of large-scale pollution from ships persists. In contrast to ﬁnancial liability regimes and laws designed to reduce pollution from ships, the IMO Guidelines on Places of Refuge for Ships in Need of Assistance take aim at planning and response activities. They provide a framework for dealing with potentially conﬂicting interests in granting a place of refuge to a ship in need of assistance. In the United States, the National Response System provides the framework for planning and response to place of refuge scenarios. Area Committees are the primary venue for incorporating the IMO Guidelines into the National Response System via Area Contingency Plans. By securing agreements on the criteria and process for decision-making in the calm of pre-incident planning, relevant authorities can concentrate on a narrower range of decision points during the heat of a response. Area Contingency Plans may include a ‘pre-assessment’ of potential refuge locations, which can signiﬁcantly aid the decision-making process during a response. Throughout the planning process, Area Committees may include representatives from Harbor Committees and Area Maritime Security Committees to capture all stakeholder concerns – an important consideration in view of potentially conﬂicting interests that may occur during a place of refuge scenario. During a response, the United States Coast Guard exercises ultimate decision-making authority at the local level. While the Coast Guard retains ultimate decision authority, the decision-making process is normally consensusbased through a uniﬁed command unless urgent circumstances require immediate action. The uniﬁed command ensures complementary efforts and ‘one-voice’ heard outside the decision-making body, which is critical in gaining the trust and conﬁdence of the public and higher authorities. Although in practice these concepts may involve considerable challenges, the IMO Guidelines offer tremendous advantage in focusing planning and response efforts.

Research and Experimentation on Accidental Water Pollution (CEDRE), “Prestige,” Spills, CEDRE, <www.lecedre.fr/uk/spill/prestige/prestige.html>, April 2004; Vázquez and Prada, ibid.

Chapter 20 Places of Refuge: Considerations for Determining a Canadian Approach Philip John INTRODUCTION Transport Canada’s policy planning document of February 2003, Straight Ahead: A Vision for Transportation in Canada,1 outlines the federal government’s strategic direction for transportation decision-making. This vision includes international maritime shipping off Canada’s extensive coastline and notes the potential political, economic, environmental and social consequences of persistent oil spills from tankers such as the ‘Prestige’, which sank off the Galician coast of Spain.2 The issue of places of refuge for ships in need of assistance became a hotly debated international subject after this casualty, which followed on the heels of the ‘Erika’ in December 1999 and the ‘Castor’ in January 2001.

1

Transport Canada, Straight Ahead: A Vision for Transportation in Canada (Ottawa, Transport Canada, 2003) (hereafter Straight Ahead Report). 2 Ibid., 39.

505 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 505–531. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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With 243,792 kilometres of coastline (including islands) bordering three oceans, and another 9,500 kilometres along the Great Lakes, Canada has the longest coastline in the world. Its exclusive economic zone (EEZ) covers 3.7 million km2; combined with the second largest national continental shelf, Canada’s total offshore area totals 6.5 million km2. Despite the spread of its coastlines, Canada has not designated places of refuge for ships in need of assistance and has not yet adopted a national policy to deal with requests for places of refuge, although there is a process currently under way to develop a Canadian approach.3 Canada’s extensive seaborne trade and the stringent legislative and regulatory framework of shipping in North America render imperative the formulation of a Canadian national policy on places of refuge for ships in need of assistance. The Straight Ahead report suggests participation in international shipping forums as a way to encourage the development of Canadian public policy that will protect and preserve Canada’s economy and marine environment.4 The International Maritime Organization (IMO) Guidelines for Places of Refuge for Ships in Need of Assistance (IMO Guidelines) and the Maritime Assistance Service (MAS) Resolution provide a framework for decision-making by coastal authorities in relation to requests by the shipowner or salvor to enter a place of refuge.5 The Straight Ahead report recognises the vital necessity of such a framework and the need to tailor responses to Canada’s unique geography, environment, and social and political institutions.6 Implementing the IMO Guidelines in Canada would mean that the impact of the potentially damaging and expensive accident scenarios, while inevitable, could be contained and mitigated by effective preparation and response. This chapter examines issues to be considered in the development of a Canadian national policy on places of refuge for ships in need of assistance and evaluates the operational, legal and regulatory viability of such a policy in the Canadian context. It concludes with suggestions for a federal policy framework. The integration of a Canadian national policy on places of refuge with the ongoing measures to improve the efﬁciency, competitiveness, security and sustainability of Canadian ports is recommended.

3 The Department of Fisheries and Oceans and Transport Canada are studying various submissions. 4 Straight Ahead Report, supra note 1, 39. 5 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Assembly Resolution A.949(23), adopted on 5 December 2003, IMO Doc. A 23/RES.949, 5 March 2004. 6 Straight Ahead Report, supra note 1, 39.

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SETTING THE STAGE Canada has had signiﬁcant experience with ships in distress seeking refuge in its ports or waters.7 As early as 1883, the Exchequer Court encountered a case concerning a vessel entering a Canadian port for shelter and as a place of safety.8 Recent incidents highlight the importance of the subject in the Canadian context and the need to put a risk assessment process in place. In July 1989, the German-ﬂagged bulk carrier MV ‘Trave Ore’ struck an iceberg at full speed (12 knots) in dense fog, 158 nautical miles east of Belle Island, Newfoundland, en route to Hamburg, Germany.9 Refuge in Canadian waters was requested. The damaged ship was initially refused refuge, but was subsequently permitted to enter Canadian waters to undertake repairs. Damage to the forepeak tank, No. 1 port wing tank, and No. 1 cargo hold cost US$ 4 million to repair. In December 2000, the 127,000 gross ton, Panamanian-ﬂagged, 1976–built, tanker MT ‘Eastern Power’ began leaking some of its 1.9 million barrels of crude oil, while en route to Come-by-Chance, Newfoundland, from Egypt.10 Less than a week after the tanker’s hull developed a crack causing the initial leak, rough waters off Newfoundland damaged the ship again without affecting either the structural integrity of the vessel or its seaworthiness. The crude oil was contained on board by transferring thousands of barrels of the cargo from the damaged tank to another tank. Refuge in Canadian waters was requested, to discharge the cargo and effect repairs. Transport Canada instructed the vessel not to enter Canada’s 200-nautical mile EEZ until the master could prove the vessel was not leaking any more oil. Canadian authorities sent an aircraft to videotape the ship, and decided it was too dangerous to let the vessel come any closer to the coast as they were worried that seabirds and ﬁsh stocks would be put at risk. The ship was stranded about 500 kms southeast of Newfoundland for several days. Transport Canada later allowed the ship to enter Canadian waters, under strict conditions. The crew agreed to transfer all remaining oil from the leaking tank into other storage tanks and assured the Canadian

7 A. Chircop, “Ships in Distress, Environmental Threats to Coastal States, and Places of Refuge: New Directions for an Ancien Regime?”, 33 Ocean Development and International Law, No. 2 (1 April), 2002, at 208. 8 Ibid., at 208. See also Canada (Attorney General) v. MacDonell (1883), 1 Ex. C. R. 99. 9 B. T. Hill, “Database of Ship Collisions with Icebergs”, National Research Council, <www.nrc.ca/imd/ice/scdb_index.html>, 8 February 2002. 10 CBC News, “Troubled tanker turns south watched by U.S. Coast Guard”, <www. cbc.ca/cgi-bin/templates/view.cgi?/news/2000/12/13/oil_tanker001213>, 13 December 2000.

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government that no more oil would be spilled. Later, the ship’s manager (World-Wide Shipping Agency of Singapore), instructed the captain to leave Canadian waters and to head south towards the Caribbean, where the cargo was eventually discharged and sold at St. Eustatius, Netherlands Antilles.11 In March 2001, the Japanese-built container ship MV ‘Kitano’ was 15 nautical miles south of Halifax, Nova Scotia, when a ﬁre broke out on its foredeck.12 Battling a ﬁerce storm, the 50,000-tonne, 280-metre long ship, carried 2,100 containers of various items, including cigarettes and machinery. The ﬁre started in a container of carbon powder and soon encompassed two levels of the container stack. Permission to enter the Port of Halifax was requested to effectively ﬁght the ﬁre, determine the cause, prevent a recurrence and effect repairs. The federal Department of Transport determined that the ship was unsafe because it was loaded with dangerous goods. High seas and strong winds precluded a boarding and hampered rescue efforts throughout the night. MV ‘Kitano’s’ crew brought the ﬁre under control the next day.13 The ship’s captain was instructed by federal authorities (Transport Canada) not to come into the Port of Halifax, and it was not until the weather cleared enough for a harbour pilot to reach the ship and evaluate its condition, that the vessel was allowed to enter port. These incidents show that the issue of a policy on places of refuge is relevant for Canada. Other recent high proﬁle cases where a lack of direction and foresight severely exacerbated a controllable set of circumstances and led to environmental catastrophes and economic impacts of gross magnitude highlight the vital role that a policy will play in protecting Canada’s maritime interests.

THE CONTEXT FOR A CANADIAN POLICY ON PLACES OF REFUGE FOR SHIPS Regional Diversity Canadians depend on their littoral, riparian and estuarine environments. Historically, Canada has had a vibrant maritime tradition that is dependent on maritime transportation and resource-based industries such as ﬁsheries and offshore oil and gas production.14 Approximately 100,000 vessels transit Canadian 11

Ibid. Michael Tutton, “As Crew Battled Ship Blaze, Fire Ofﬁcials Debated Jurisdiction”, <www.dcfp.navy.mil/mc/articles/other/Kitano.htm>, 26 November 2003. 13 Captain J. Proulx, “Navy, Air Force respond to ﬁre on board container ship”, <www.dnd.ca/site/community/mapleleaf/html_ﬁles/html_view_f.asp?page=Vol4_13___ _Navy8 – 9>, 24 March 2001. 14 Direct ocean-related industries currently contribute more than CDN$ 22 billion 12

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waters annually, transporting more than 360 million tonnes of goods with a commercial import/export value of approximately CDN$ 85 billion. In addition, 158 marine ferries and more than two million pleasure craft operate in Canadian waters.15 While the monetary value of the economic activity in Canada’s coastal areas is estimated to be around CDN$ 150 billion per year,16 the importance of the coastal marine environment transcends monetary concerns to principles of social equity and cultural heritage. There is an intimate connection between the health and well-being of Canada’s coastal communities, sustainable use of coastal resources and the health, productivity and biodiversity of the marine environment.17 Coastal areas (encompassing areas within 60 kilometres of the coast) house about 23 percent of the Canadian population, and coastal communities continue to grow at a robust pace, particularly on the Paciﬁc coast. These statistics, however, mask the signiﬁcant variations between the coasts with respect to the type of marine trafﬁc that would precipitate the need for a place of refuge. Although 62 percent of domestic marine activity takes place in the Great Lakes and St. Lawrence River region,18 these waters do not involve ships in transit as all ships would be calling at a Canadian or a United States

annually to the Canadian economy. The commercial ﬁshing sector contributes CDN$ 2 billion annually in harvest value and CDN$ 4.4 billion in export value. The value of ﬁsh-farm production has increased ﬁve fold in the last two decades as has employment in aquaculture. The annual investment value of offshore oil and natural gas production has increased from CDN$ 250 million to CDN$ 5 billion over the past decade with employment rising to four percent of the overall oceans industry from 0.3 Percent. Recreation and tourism have grown more than 33 percent in the past decade with cruise ship tourism showing a 176 percent increase in the number of passengers. DFO, Canada’s Oceans Action Plan, “Integrated Oceans Management for Sustainable Development”, (Ottawa, DFO, March 2005)<www.dfo-mpo.gc.ca/canwaters-eauxcan/ oap-pao/pillar2_e.asp>, 5 August 2005. 15 Canadian Coast Guard, “Canada as a Maritime Nation”, <www.ccg-gcc.gc.ca/ overview-apercu/context_e.htm>, 22 November 2004. 16 Fisheries and Oceans Canada, “Canada’s Oceans Action Plan for Present and Future Generations”, <www.dfo-mpo.gc.ca/canwaters-eauxcan/oap-pao/pillar2_e.asp>, 27 May 2005. 17 The Federal/Provincial/Territorial Advisory Committee on Canada’s National Programme of Action for the Protection of the Marine Environment from Land-Based Activities, Canada’s National Programme of Action for the Protection of the Marine Environment from Land-Based Activities (Ottawa, Environment Canada, 2000) (hereafter NPA), chapter 1, section 1.2, 2. 18 The Great Lakes – St. Lawrence Seaway/River/Gulf System extends 4,000 kilometres from the Canadian Lakehead at Thunder Bay, Ontario, to the Cabot Strait between Nova Scotia and Newfoundland and the Strait of Belle Isle between Newfoundland and Labrador.

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port and would be subject to the port state control of one or both of these countries. Canada can, therefore, ensure a high quality of ships in this region, obviating the need for places of refuge requests. Existing safety and spill response regimes will govern any necessary remedial actions. Of the remaining domestic marine activity in Canada, about 11 percent occurs in the Atlantic region and 25 percent in the Paciﬁc region. Requests for a place of refuge are most likely on these coasts. Prevailing oceanographic and meteorological conditions differ between the coasts and have a bearing on the degree of risk to the coastal environment and hence to a place of refuge policy. On the east coast, maritime trafﬁc is primarily crude oil and petroleum products, as well as container trafﬁc. As oil and natural gas exploration, development and production activities on the east coast (and in the Arctic) are expected to grow signiﬁcantly in the coming decades, a places of refuge policy should consider the ramiﬁcations of associated maritime trafﬁc and the potential for pollution incidents. Exports of bulk raw materials (e.g., sulphur, coal and wheat) and forest products, as well as container trafﬁc, dominate the Paciﬁc coast trade. The Paciﬁc region accounts for over one-third of Canadian international trade, with the ratio of exports to imports being 9 to 1.19 Increasing container trafﬁc, combined with ever larger and faster container ships (with stores of bunker oil), points to an increasing potential for places of refuge requests, particularly on the east coast.20 The Canadian Arctic archipelago (covering 1.4 million km2) currently has negligible commercial trafﬁc. However, if increased maritime trafﬁc in the region becomes a possibility (see discussion below), the places of refuge issue will become relevant. Canada enforces the regulations and standards under the Canada Shipping Acts of 198521 and 200122 and the stricter Arctic Waters Pollution Prevention Act23 in these waters. Currently, the situations that may lead to a place of refuge request in the Canadian Arctic are remote and, in any case, moving a vessel out to sea through these ice-infested Arctic waters would be dangerous and impractical. 19

G. Herbert, “Shipping in Canada”, <www.naval.ca/article/herbert/shippingincanada_byglenherbert.html>, Spring 1997. 20 Recent delays in cargo delivery from the west coast ports (Canadian and American) due to grid-lock and undercapacity of connecting railroads means that the Atlantic ports are likely to see an increase of container trafﬁc. Transiting trafﬁc will also increase on the east coast of Canada due to the improvements and promotion of American Atlantic coast ports to attract trafﬁc that would normally have gone to the American Paciﬁc coast ports. 21 Canada Shipping Act, R.S. 1985, c. S-9 (hereafter CSA 1985), s. 1. 22 Canada Shipping Act, 2001, R.S. 2001, c. 26 (hereafter CSA 2001), s. 151 and ss. 153–164. This act is not yet in force as pertinent regulations are still under development. When it comes into force, it will supersede CSA 1985. 23 Arctic Waters Pollution Prevention Act, 1985, R.S. 1985, c. A-12.

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Canadian Federalism Canada is a constitutional monarchy with a parliamentary system based on the British model. Canada’s unique federal/provincial/local jurisdictional structure and distribution of powers is laid out in the Constitution Act, 1867.24 The federal parliament has jurisdiction over navigation, shipping and ﬁsheries, defence, relations with other states and the authority to enter into international treaties.25 When it comes to implementing international treaties, the federal government must ensure that it has the consent of the provinces and territories to co-operate in implementing treaties falling under provincial responsibility. Provincial governments have jurisdiction for resource management within their borders, including intra-provincial trade and commerce, and environmental conservation and protection. The jurisdiction of energy resources and management is divided between the federal and the provincial governments.26 Municipal governments (cities, towns, villages and metropolitan regions) may also have powers (bestowed by the legislatures) over marinas, parks, recreational sites, wetlands, beaches and nearshore areas (including cleaning and disposal of waste). Although a federal government agency would process a request for refuge and monitor the stricken vessel’s progress through Canadian waters, the consequences of granting or denying refuge may fall within the purview and responsibility of both the federal and the provincial governments. Beyond the navigable waters on the landward side, jurisdictional authority shifts from the federal government to the provincial government or to local governing bodies or agencies. Granting a place of refuge to a ship in need of assistance inevitably involves the possibility of environmental damage to coastal communities, navigation and shipping, marine protected areas, land-based ecosystems, aquaculture, ﬁsh stocks, wildlife and migratory birds, with potentially immense economic consequences. The question of compensation for losses suffered and

24

Constitution Act, 1867, (UK), 30 & 31 Vict., c. 3 reprinted in R.S.C. 1985, App. II, No. 5. See the Government of Canada, “The Constitution Act, 1867” (Section VI), <www.solon.org/Constitutions/Canada/English/ca_1867.html>, 10 November 2001. 25 Ibid., s. 101. 26 Ibid., s. 92A(1) and (3). The federal government retains ownership of oil and natural gas resources in the Canadian Arctic and offshore, although this has been disputed by some provincial governments. Both the provinces of Nova Scotia and Newfoundland and Labrador jointly manage oil and natural gas exploration, development and production of their offshore oil and natural gas resources with the federal government through independent offshore petroleum boards. As the east coast of Canada, and potentially the west and Arctic coasts, emerge as major players in offshore hydrocarbon production the potential for future place of refuge requests from ships (tankers) in need of assistance increases.

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its administration in terms of equitable distribution to federal, provincial and local government agencies, as well as private interests, thus has a bearing on the division of responsibilities. The need for uniformity in Canadian maritime law has repeatedly been emphasised by the Supreme Court of Canada.27 The possibility of the Canadian discussion on places of refuge being complicated by overlapping and intervening jurisdictions is quite likely; streamlining and harmonising federal and provincial responsibilities is a necessary consideration in the formulation of a Canadian places of refuge policy.

Canada’s Emerging Oceans Management Framework Coastal states have a duty to use and manage the world’s oceans sustainably.28 All levels of government share this responsibility for protecting and preserving the marine environment. Co-operation and collaboration, not only internally, but also with neighbouring states are necessary. In Canada, at least 23 federal legislative acts and 21 federal departments and agencies play a role in the management of the oceans.29 Beyond this federal regime there are a multitude of provincial or territorial acts that again concern marine matters. A viable policy on places of refuge for ships is a signiﬁcant component of Canada’s ocean management regime. Canada’s oceans management strategy is outlined in the Oceans Act,30 and is based on the premise that the oceans must be managed as a collaborative effort among stakeholders.31 The fundamental principles of the national strategy are sustainable development, integrated management and the precautionary approach. The consolidation of federal responsibilities under one organisation (Department of Fisheries and Oceans, DFO, also known as Fisheries and Oceans Canada), with the Canadian Coast Guard (CCG) acting as the lead federal agency accountable for oceans management, is a direct manifestation of the pursuit of integrated oceans management and a need to rationalise ﬂeet resources. DFO is also responsible for providing coast guard services and

27 E. Gold, A. Chircop and H. Kindred, Maritime Law (Toronto, Irwin Law, 2003), at 111 et seq. 28 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982 (in force on 16 November 1994), UN/Doc. A/CONF.62/122, 7 October 1982 (hereafter LOS Convention), Parts II–VI and XII. See also Agenda 21, Chapter 17, , 5 August 2005. 29 NPA, supra note 17, chapter 1, section 1.1A, 1. 30 Oceans Act, R.S., 1996, c. 31 (hereafter Oceans Act), Part II, Oceans Management Strategy. 31 Fisheries and Oceans Canada, “Canada’s Oceans Act”, <www.pac.dfo-mpo.gc.ca/ oceans/OceansAct/OAPart2_e.htm>, 25 February 2005.

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hydrographic services, as well as protection of the marine environment (shared with the Department of the Environment, also known as Environment Canada), the facilitation of maritime trade, commerce and accessibility (shared with the Department of Transport, also known as Transport Canada), and the advancement of marine science. Canada has sought to protect the marine environment and marine resources through the delineation of areas for conservation. DFO is responsible for creating marine protected areas (MPAs), which are governed under section 35 of the Oceans Act,32 for the conservation and protection of ﬁshery resources, other marine species, habitats, and areas of high biodiversity and biological productivity. The Parks Canada Agency, within Environment Canada, can establish National Marine Conservation Areas (NMCAs) under the Canada National Marine Conservation Areas Act for the purpose of ‘protecting and conserving representative marine areas for the beneﬁt, education and enjoyment of the people of Canada and the world’.33 NMCAs serve multiple roles; while some areas enjoy high levels of protection, other areas are open to human activities such as recreational use and shipping. Although 29 representative marine areas have been identiﬁed, there are only two operational sites at present.34 Environment Canada can also create Marine Wildlife Areas (MWAs) under a 1994 amendment to the Canada Wildlife Act, for the purpose of protecting offshore coastal habitats, particularly for migratory birds.35 These varied environmental conservation practices add another level of complexity to developing a places of refuge policy. A place of refuge policy must be sensitive to these special areas and create appropriate safeguards while ensuring the advancement of economic activity. The complex mechanisms driving climate change also impact oceans management and the places of refuge discussion in Canada. The rising surface water temperatures caused by global warming and the entrapment of solar heat in the earth’s atmosphere could clear the way for higher volumes of maritime trafﬁc in the Canadian Arctic due to an increased expanse of open, ice-free waters. The various northern channels that collectively constitute the Northwest Passage could become a major trans-ocean trade route (especially for fossil fuel supplies from Russia, the Canadian Arctic and Alaska).36 Furthermore, the ris-

32

Oceans Act, supra note 30, s. 35. Canada National Marine Conservation Areas Act, R.S. 2002, c. 18, s. 4(1). 34 Parks Canada, “National Marine Conservation Areas of Canada”, <www.pc.gc.ca/ progs/amnc-nmca/system/system1_E.asp>, 1 April 2003. 35 Canada Wildlife Act, R.S. 1985, c. W-9, as amended by 1994, c. 23, s. 16, see s. 4.1(1) and 4.1(2). 36 However, increased maritime trafﬁc in this region is a possibility as a result of climate change, see, for example, R. Huebert, “Climate Change and Canadian Sovereignty 33

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ing water levels caused by the melting ice ﬂoes and Arctic glaciers could alter the ecology, the ecosystems and the physical features of inland and coastal waters, necessitating a re-evaluation of the suitability of potential place of refuge sites. A national policy on places of refuge will therefore have to be ﬂexible and adaptable to the dynamic and changing conditions caused by such natural phenomena. Oceans management in Canada aspires for a methodical and systematic arrangement of governing structures and decision-making institutions and policies for the preservation and protection of Canada’s resources, while promoting economic development. The places of refuge policy is a vital component of this management framework. Implementing a uniﬁed management code wherein the oceans management priorities of Canada are incorporated with a national places of refuge policy will undoubtedly be a challenge. A places of refuge policy will have to balance the protection of the marine environment and conservation and sustainable use of marine resources with the goal of ensuring that a ship in need of assistance is granted access to a safe haven.

Port Administration Considerations A place of refuge policy for Canada will have to accommodate the various port authority mechanisms, and their potentially overlapping jurisdictions. Canada’s public port governance structures consist of: a) Port Authorities: 19 independently managed and self-sufﬁcient major ports deemed essential to domestic and international trade. These ports do not receive government appropriations. b) Harbour Commissions: Regional and local ports with various degrees of federal, provincial, municipal, community, local and private governance and ownership. The phased divestiture and privatisation of these ports is ongoing. c) Transport Canada Ports: Small commercial ports and 32 ports in communities in remote regions. These ports are owned and administered by Transport Canada and have not been divested.37 The process of divestiture of Canada’s 369 commercially designated public ports was made a matter of national priority under the Canada Marine Act.38

in the Northwest Passage”, ISUMA, Canadian Journal of Policy Research, 2(4), Winter 2001, <www.isuma.net/v02n04/index_e.shtml>, 1 August 2005. 37 Transport Canada, ‘Transportation in Canada 2000–Transportation Infrastructure (The Port System)’ <www.tc.gc.ca/pol/EN/Report/anre2000/tc0010de.htm>, 5 March 2003. 38 Canada Marine Act, R.S. 1998, c. 10 (hereafter CMA), s. 4(g).

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The different organisational structures and administration frameworks of these diverse port governance systems and their varying degrees of autonomy will increase the complexity of any place of refuge policy promulgated by Canada. Many states vest ministers, maritime administrations, port or harbour authorities, or designated persons with the power to permit the entry, or conversely, to order the departure of vessels, or to take unilateral action to remove or destroy a vessel (e.g., where there is a risk to the safety of a port, or the maritime and coastal environment). Although Canada does not have any speciﬁcally designated places of refuge, the Canada Marine Act allows the removal, destruction or disposal of any ship, part of a ship, structure, work or other thing that interferes with navigation in a port and provides for the recovery of the costs incurred.39 Overlapping jurisdictions in the navigable waters of a Canadian port also has the potential to create conﬂict and confusion. The pollution prevention ofﬁcer (Canada Shipping Act, 198540 and Canada Shipping Act, 2001),41 the port authority (Canada Marine Act)42 and the port administration (Marine Transportation Security Act)43 all have responsibilities in Canadian ports, creating the potential for conﬂicting directions and recondite chains of command. A national place of refuge policy will need to vest one agency with the overriding power to direct ships, ports, response personnel and all interested parties. (This issue is discussed more fully in ‘Legal Issues’ below.) Canada’s port management framework is in the process of evolution and is subject to the authority of various government departments and agencies. A place of refuge policy will have to be mindful of the potential for conﬂict and confusion thus created and seek to unify and harmonise the decision-making process, in the interests of the ports, state and local authorities, coastal communities, and the ship in need of assistance. The place of refuge policy should be integrated with the measures currently being put in place to improve the efﬁciency, competitiveness, security and sustainability of Canadian ports.

39 Transport Canada, Canada Marine Act, 1998 (Ottawa, Transport Canada, 2005), Regulation 62 (c), 33. Examples of other states which have enacted such legislation are: Australia, Brazil, Chile, China, Denmark, France, Germany, Hong Kong, Italy, New Zealand, Netherlands, Norway, South Africa, Spain, Sweden, the United Kingdom and the United States. However, only four of these countries (Denmark, Germany, Norway, and the United Kingdom) have speciﬁcally designated places of refuge. 40 CSA 1985, supra note 21, s. 661. 41 CSA 2001, supra note 22, s. 175(1). 42 CMA, supra note 38, s. 8. 43 Marine Transportation Security Act, R.S. 1994, c. 40 (hereafter MTS) and Maritime Transportation Security Regulations, SOR/2004–144, s. 1, “Port Administration”.

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GENERAL INTERNATIONAL LAW AND POLICY CONSIDERATIONS From the historical perspective, the right of ships to seek refuge when in distress, either in the waters of its own ﬂag state or in the waters of any other state, has been universally accepted as necessary and acknowledged as such in various international instruments. Article 18 of the United Nations Convention on the Law of the Sea, 1982 (LOS Convention)44 states that passage of a ship through the territorial seas of another nation shall be continuous and expeditious. ‘However, passage includes stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or distress or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress’.45 Other international conventions which Canada has signed oblige Canada to provide assistance, support and rescue to ships in distress. Chapter 5, Regulation 7 of the International Convention for the Safety of Life at Sea, 197446 and Article 11 of the Convention for the Uniﬁcation of Certain Rules of Law relating to Assistance and Salvage at Sea, 191047 along with Article 98 of the LOS Convention, make it the duty of every state to render assistance to ships, crews and passengers in distress, and to cooperate with neighbouring states for this purpose, by way of mutual regional arrangements. Annex Chapter 2 (Clause 2.1.1) of the International Convention on Maritime Search and Rescue, 1979 (SAR Convention)48 obliges coastal states to make provision for organising adequate search and rescue services for persons in distress at sea around their coasts. Canada’s treaty obligations, therefore, reafﬁrm Canada’s duty to render maritime assistance and Canada has put such systems in place.49 Such assistance also extends to health issues. International health regulations discourage the denial of entry to ports of ships carrying persons with infectious diseases.50 Canada, with a rapidly growing cruise industry on both the east and

44 LOS Convention, supra note 28, Art. 18. Canada ratiﬁed the Convention in November 2003. 45 Ibid. 46 International Convention for the Safety of Life at Sea, London, 1 November 1974 (in force on 25 May 1980), 1184 U.N.T.S. 2, Chap. V, Reg. 7. SOLAS was ratiﬁed by Canada in May 1978. 47 Convention for the Uniﬁcation of Certain Rules of Law respecting Assistance and Salvage at Sea, Brussels, 23 September 1910, 103 U.K.T.S. 441. Canada ratiﬁed this as a dominion of the United Kingdom in September 1910. 48 International Convention on Maritime Search and Rescue, London, 27 April 1979, 1405 U.N.T.S. 97. Canada ratiﬁed this convention in June 1982. 49 For a list and discussion of maritime law instruments to which Canada is a party, see Gold et al., supra note 27, 672 et seq. 50 Article 41 of the International Health Regulations of the United Nations World Health Organization (Third Annotated Edition, Geneva, World Health Organization,

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the west coasts, must ensure that adequate facilities are available in potential places of refuge to deal with diseases like the avian bird ﬂu, the Norwalk virus and severe acute respiratory syndrome (SARS), in order to protect coastal populations. A request for a place of refuge from a cruise ship or a passenger vessel could involve scenarios where infectious diseases would be a factor. Although Canada’s treaty obligations do not compel Canada to grant refuge in such cases, the issue must be considered if tourism and economic development are considered a priority. The growth in the types and sizes of ships has also added a new dimension to the debate on places of refuge. Large oil tankers and, indeed any large ship equipped with diesel propulsion systems, carry vast amounts of crude oil and reﬁned petroleum products, either as cargo or as fuel bunkers for propulsion and other ship’s services. Several international conventions address ship-generated marine pollution. Articles 192, 197 and 199 of the LOS Convention oblige states to ‘protect and preserve the marine environment’,51 to co-operate on a global or regional basis for the protection and preservation of the marine environment, to notify other states and competent international organisations of pollution damage or imminent danger, and to develop and promote contingency plans for responding to pollution incidents in the marine environment. Chapter 2-Regulation 9 of the International Convention for the Prevention of Pollution from Ships, 1973/1978 (MARPOL 1973/1978 ) prohibits any discharge into the sea of oil or oily mixtures from ships.52 The ‘General Obligation’ under Article 1 binds the parties to the Convention to take steps ‘to prevent the pollution of the marine environment by the discharge of harmful substances or efﬂuents containing such substances’.53 The parties to the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 (OPRC Convention) undertake ‘to take all appropriate measures to prepare for and respond to an oil pollution incident’.54 A places of refuge policy would meet these

1983) stipulates that, ‘a ship or an aircraft shall not be prevented for health reasons from calling at any port or airport. If the port or airport is not equipped for applying the health measures which are permitted by these Regulations and which in the opinion of the health authority for the port or airport are required, such ship or aircraft may be ordered to proceed at its own risk to the nearest suitable port or airport convenient to the ship or aircraft’. 51 LOS Convention, supra note 28, Arts. 192, 197 and 199. 52 International Convention for the Prevention of Pollution from Ships, London, 2 November 1973, 1340 U.N.T.S. 184, as amended by Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships of 1973, 17 February 1978, 1340 U.N.T.S. 61, Annex 1, Reg. 11 (hereafter MARPOL 1973/1978). Canada ratiﬁed this instrument in February 1993. 53 International Maritime Organization, MARPOL 73/78 Consolidated Edition, 1991 (Consolidated Edition, London, International Maritime Organization, 1992), at 78. 54 International Convention on Oil Pollution Preparedness, Response and Co-opera-

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organisation and preparedness requirements to protect the marine environment, as well as providing ships in needs of assistance with a safe haven. While the obligation to assist ships in distress is prima facie unassailable, is less clear whether a place of refuge has to be provided to such ships. A damaged ship potentially poses environmental risks. Refuge pits the provision of assistance to a ship in distress against the protection and preservation of the environment obligation. Canada’s environmental obligations are unequivocal. This dichotomy requires resolution on an international level as well as on national, provincial and regional levels. An additional consideration is the highly charged security environment following the terrorist attacks on 11 September 2001 in the United States, which has led to the introduction of measures to bring dangerous cargoes and any suspicious cargoes (especially containerised cargoes) under increased scrutiny and control. Such measures need to be harmonised with any regulations adopted to assist ships in distress or in need of assistance.

THE ELEMENTS OF A CANADIAN NATIONAL POLICY ON PLACES OF REFUGE The IMO Guidelines and MAS Resolution have generated certain expectations of states with regards to places of refuge. In order to meet these expectations, Canada must put in place an effective management regime for places of refuge that is ﬂexible, efﬁcient and integrated. Such a regime must include the following elements: risk assessment, contingency planning, decision-making, and legal issues. Each of these elements will be discussed in turn below.

Risk Assessment As a net importer of crude oil, tanker casualty statistics are of relevance in the places of refuge discussion in Canada. There have been approximately 500 serious tanker casualties worldwide over the past 30 years, of which about 50 percent involved ﬁre and explosion, either in the engine room, accommodation areas, or cargo spaces.55 Although the number of tanker accidents has steadily decreased during the last decade it is logical to surmise from the past incidents that the occurrence of future tanker casualties has not been eliminated.

tion (OPRC 1990), London, 30 November 1990, IMO Doc. OPPR/CONF/25, 30 I.L.M. 735 (May 1991) (hereafter OPRC 1990). Ratiﬁed by Canada in March 1994. 55 P. John, “News from Canada: Overview”, Rigel Report No. 18, Edition: August 2000, 18.

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Improved training, advanced detection and warning systems, intelligent navigation systems and the increased use of technology in ships will contribute to safer and more reliable ships, but will not remove the risks of accidents and breakdowns entirely. As recent incidents of ships seeking (and being denied) access to a place of refuge indicate (e.g., ‘Prestige’), the initial structural damage was compounded by a lack of assistance by the coastal state, resulting in signiﬁcant environmental degradation.56 Canada must prepare for the future based on the lessons learned from these casualties and based on the unique characteristics of the Canadian coastline. Although not as catastrophic as the ‘Erika’ or ‘Prestige’ casualties, Canada has already had numerous oil spills, some causing extensive damage, on the Atlantic and Paciﬁc coasts.57 The suitability of a place of refuge in the Canadian context will depend on its degree of environmental and social sensitivity and the impact of potential damage from a ship in need of assistance. Thus risk assessment is an important element in a places of refuge policy. Canada’s integrated oceans management strategy should serve as context for the risk assessment process for a place of refuge policy. Accessing current resources and knowledge garnered for other purposes could be useful for the evaluation of risks. For example, Environment Canada has assembled data on shoreline classiﬁcation under its Sensitivity Mapping Programme for oil spill response management,58 and this information could be utilised to determine the nature and degree of risk to coastal communities, local economies, ecosystems and commercial enterprises, when a site is considered as a place of refuge. The programme uses geographic information systems (GIS) technology and digital maps, to identify coastal features of speciﬁc geographical areas including the biological species present, shoreline type, distinctive physical features of the area which could hamper clean-up efforts, human activities typical of the coastal area, and the clean-up infrastructure required to deal with a spill situa-

56

The estimated cost of the clean up of the Spanish Galician coast alone after the ‘Prestige’ sank was € 2.5 billion (US$ 3 billion). These incidents have brought the discussion on places of refuge to the forefront of proposed international as well as national marine policy. The governments of Spain and France have subsequently taken steps to direct oil tankers like the M. T. ‘Prestige’ away from their coasts, while the Commissioner for Transportation of the European Union has lobbied for a complete ban of single hulled tankers. See, for example, the report of the ‘Prestige’ oil spill and links provided by the International Tanker Owners Pollution Fund, <www.itopf.com/casehistories.html#prestige>, 24 June 2005. 57 See Ship-Source Oil Pollution Fund: The Administrator’s Annual Report 2003–2004 (Ottawa, SSOPF, 2004) (hereafter SSOPF Report). 58 Environment Canada, “Environmental Emergencies Programme – Sensitivity Mapping”, <www.ec.gc.ca/ee-ue/preparedness/preparedness_e.asp?print=1>, 6 May 2004.

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tion. This data has been collected for prioritising response initiatives and would also be useful to places of refuge decision-makers. A risk assessment process to assist in places of refuge decision-making should examine environmental, socio-economic and operational risks. Environmental risk assessment of potential place of refuge sites would include considerations of the possible environmental threats, the weather, sea, tides, currents and other physical conditions, and the environmental and ecological sensitivity of the coastline and sea areas in the vicinity. A precautionary approach as outlined in Canada’s oceans management strategy would need to be given due weight. Socio-economic risk assessment would include an evaluation of potential risks to coastal communities and business interests (sea-based and shore-based). As a ship in need of assistance often needs support equipment and facilities, which are usually located in ports where marine transportation, offshore oil and gas, aquaculture, commercial and recreational ﬁshing and tourism could be affected, there is clearly a need to assess the potential risks to these activities. Operational risk assessment of potential place of refuge sites would include the safety and security of communities near the place of refuge and the terms of compensation to affected parties. There may be a risk to shore communities of explosion or other safety hazards from the ship in need of assistance or the ship could pose a security threat. Collaboration with Canada’s neighbouring states (United States, France and Denmark) may be needed, and the terms of such collaboration should be worked out with these governments. A compensation regime would require the posting of performance bonds. The historical evidence of the ships denied timely access to a place of refuge, seems to suggest that in the absence of a national policy on places of refuge for ships in need of assistance, there is a much greater likelihood of the ship sinking, with consequent damage to the environment. Risk assessment is a vital component in the development of a sound policy on places of refuge. A Canadian places of refuge policy could build upon existing ocean management assessment programmes, as well as introducing appropriate environmental, socio-economic and operational risk assessment procedures.

Contingency Planning for Effective Response Administration of a places of refuge policy requires guidelines for the implementation of the procedures and management tools for decision-makers responding to a request for a place of refuge. These procedures and management tools, or contingency planning encompass a governance structure, database of reliable and current information, technological research and development, and rational and unbiased decision-making free of political interference and conﬂicting authorities.

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The IMO Guidelines require states to adopt a National Places of Refuge Contingency Plan.59 To exploit the synergy of joint efforts and well-laid plans already in effect in Canada, the Marine Spills Contingency Plan60 of the Canadian Coast Guard could be used as a base document for a national places of refuge contingency plan. The Responsible Party or On-Scene Co-ordinator in the Marine Spills Contingency Plan is supported by environmental, legal and health experts. The Regional Environmental Emergencies Teams (REET),61 national and regional committees comprised of federal, provincial and industry representatives to give advice on how to prevent, plan for and respond to environmental emergencies, provide input into the Plan. Overall, these initiatives provide adequate interfacing with the ship, the shipowner and operator, national, provincial and local governments, the coastal communities, and salvage and response organisations in an emergency situation. The built-in infrastructure and procedures for data assembly and information dissemination involve a wide range of experts in the joint assessment and evaluation of the risks accompanying various courses of action and provides the decision-making authority with reliable, timely and accurate advice. Likewise, Environment Canada’s shoreline classiﬁcation data, collected under its Sensitivity Mapping Programme for oil spill response management, should be included in the national places of refuge contingency plan (see above). The requirements for ship reporting would need to be included in the National Places of Refuge Contingency Plan. Annex 1 of the MAS Resolution lists the IMO conventions dealing with mandatory reporting in the event of incidents involving ships. Article 8 and Protocol 1 of MARPOL and IMO Resolution A.851(20)62 lay out the information requirements for a coastal state in the event of actual or probable pollution and general principles for ship reporting. Enhancing these reporting requirements in a places of refuge policy to obtain the information necessary for decision-makers would be necessary. The procedures for directing the ship on actions to be taken and for communi-

59

IMO Guidelines, supra note 5, s. 3.6. For more information on the Marine Spills Contingency Plan of CCG, see “Marine Programs’ National Performance Report for 2003–2004, Environmental Response”, <www.ccg-gcc.gc.ca/mp-pm/docs/03–04/pr/er_e.htm>, 4 August 2005. 61 Environment Canada, “What is REET?”, <www.ns.ec.gc.ca/emergencies/reet. html>, 4 August 2005. 62 IMO Resolution A.851(20) was adopted by the International Maritime Organization Assembly at its 20th session on 27 November 1997 and entitled “General Principles for Ship Reporting Systems and Ship Reporting Requirements, including Guidelines for Reporting Incidents involving Dangerous Goods, Harmful Substances and/or Marine Pollutants”. 60

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cating with the ship’s designated person under the International Safety Management Code63 as well as the ship’s ﬂag state authorities would also have to be addressed in the contingency plan. Research and development on subjects of importance in the debate on places of refuge is another area that might be considered in Canada’s contingency plan. The lessons learnt in the cases of the MT ‘Prestige’ and the MT ‘Erika’, indicate that the oil transfer from the wrecks was slow, expensive, dangerous and incomplete. Although the salvage industry has means for such transfers, there is still room for developing reliable and rapid means for oil transfers at sea, especially from sunken wrecks. Finally, the contingency measures would need to be compatible with measures being promulgated by Canada’s neighbours, i.e., the United States, France and Denmark, so that incidents of ships requiring refuge in waters adjacent to two or more countries, would be addressed as seamlessly as possible. The coast guards of Canada and the United States have entered into a Joint Marine Pollution Contingency Plan for dealing with the release of pollutants or harmful substances, their containment, response, clean-up and analysis, in the contiguous waters of the United States and Canada.64 Planning and preparedness are core elements of this plan. The plan gives oversight and responsibility to the regional directors of the CCG and the US Coast Guard district commanders, in the area of the incident. The contiguous waters of Canada and the United States in which the Plan applies are divided into ﬁve geographical annexes.65 Building on this framework of bilateral collaboration, a Places of Refuge

63 International Safety Management Code for the Safe Operation of Ships, IMO Assembly Resolution A.741(18) adopted on 4 November 1993, IMO Doc. Res. A.741(18), 17 November 1993, in force since 1 July 1998. 64 Department of Fisheries and Oceans, Canadian Coast Guard and US Department of Homeland Security, United States Coast Guard, “Canada-United States Joint Marine Pollution Contingency Plan (JCP)”, 2003, Section 104.1, Geographic Scope, 6. 65 1) CANUSLANT: Atlantic Region covering the waters of and along the Bay of Fundy and the Gulf of Maine seaward to latitude 40° 27’ 05” North, longitude 65° 41’ 59” West, thence North along a bearing of 000° True to the Canadian shoreline. 2) CANUSLAK: Great Lakes Region comprising the Great Lakes System. The Great Lakes System is all of the streams, rivers, lakes and other bodies of water that are within the drainage basin of the St. Lawrence River, at or upstream from the point at which this river becomes the international boundary between Canada and the United States. 3) CANUSPAC: Paciﬁc Region comprising those waters in the Juan de Fuca Area, including Boundary Pass, Haro and Georgia Straits. 4) CANUSNORTH: Beaufort Sea Region comprising those waters off the Arctic Coast of Canada and the United States in the Beaufort Sea. 5) CANUSDIX: Dixon Entrance Region comprising the waters of the Dixon Entrance off the Paciﬁc Coasts of Canada and the United States.

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Project Workgroup was created for the west coasts of Canada and the United States in April 2004.66 The goal of the Workgroup is to deﬁne the IMO Guidelines in terms of operational relevance and to craft a streamlined joint decision-making process to permit the best possible decisions in processing requests for places of refuge in this region. The Workgroup is comprised of representatives from relevant Canadian and American government departments as well as industry representatives. This is not the ﬁrst example of such co-operation. Following the December 1988 oil spill of the barge ‘Nestucca’ and the March 1989 oil spill of the MT ‘Exxon Valdez’, the governors of the states of Alaska, Washington, Oregon, and California and the premier of the province of British Columbia established the Paciﬁc States/British Columbia Oil Spill Task Force.67 The Task Force focuses on regional oil spill preparedness and prevention initiatives to protect the 91,230 kms of western coastline from Alaska to California and the Hawaiian archipelago, and on co-operation across the shared western borders of the US and Canada, for mitigating oil spill risks. These collaborative initiatives could be a valuable tool in decision-making in the places of refuge process. In Greenland, a Danish territory, the responsibility for pollution response at sea lies with the Danish Ministry of the Environment, which has delegated the planning and operational aspects of the response to the Danish Environmental Protection Agency (NEPA). NEPA has prepared an oil spill contingency plan for Greenland.68 Although there have been no serious spills in the waters of Greenland, Denmark has a bilateral agreement with Canada covering Bafﬁn Bay, Davis Strait and other joint sea areas around Greenland.69 This bilateral agreement calls for co-operation between NEPA and CCG in responding to pollution incidents in contiguous waters. NEPA would need to be involved in the international collaboration issues of the Canadian places of refuge policy. In the case of St. Pierre and Miquelon (French territory), an oil spill could seriously and adversely impact the migratory birds of these idyllic French islands and the neighbouring province of Newfoundland and Labrador.

66 Paciﬁc States/British Columbia Oil Spill Task Force, “Places of Refuge Project – Final Report”, <www.oilspilltaskforce.org/docs/project_reports/PlacesRefugeProject. pdf>, January 2005. 67 The Paciﬁc States – British Columbia Oil Spill Task Force, “Overview – About Us”, <www.oilspilltaskforce.org/index.htm>, 23 July 2003. In June 2001, the US state of Hawaii was included in the Task Force. 68 International Tanker Owners Pollution Fund (ITOPF), “Greenland: Country Proﬁles – A Summary of Spill Response Arrangements and Resources Worldwide (Regional and Bilateral Agreements)”, June 1998, <www.itopf.com/country_proﬁles/ proﬁles/greenlan.pdf>, 5 August 2005. 69 Ibid.

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Bilateral agreements between Canada and France have been established under which the Canadian REET co-ordinates response action with relevant French agencies.70 In order to facilitate the exchange of data and to synchronise and control the wildlife response actions, direct contacts may be established under the bilateral agreements between the Canadian Wildlife Service (CWS) and the Services de l’Agriculture of France. This existing collaborative approach with France should be the basis for including St. Pierre and Miquelon in the Canadian places of refuge policy. Contingency planning for effective response is an elaborate and meticulous process in a place of refuge scenario. It requires the involvement of many parties, so that when a situation does occur, there will be quick understanding and rapid response, minimising any potential threat or danger to lives or to the environment. Canada has several initiatives in place that could form the basis for developing a contingency plan to deal with places of refuge scenarios. The proximity of neighbouring countries’ coastlines means that a system of bilateral collaboration should be in place to enable rapid response and mitigation of threats to human life, the ecology and the environment. Such collaborative and bilateral instruments are already in place for oil spill response scenarios and would only need some modiﬁcation to include issues pertaining to places of refuge.

Decision-making Under international law, states are obliged to take adequate measures and to inform and co-operate with other states and authorities to assist a ship in distress (see Chapter 9). However, national governments also have an obligation to act in the public interest. Several federal government departments have responsibilities vis-à-vis search and rescue, marine pollution and maritime shipping. It is often not in the public interest to make decisions that, at best, pass the risk on to a neighbouring state and, at worst, lead to an environmental, economic or social catastrophe. As seen, Canada has entered into bilateral agreements and administrative arrangements relevant to places of refuge, with its neighbours – the United States , Denmark and France. Although under existing administrative statutes, Canada may be well within its authority to refuse access to a place of refuge to a ship in need of assistance, its international, environmental and social responsibilities may dictate otherwise.

70 Canadian Wildlife Service, Environmental Conservation Branch, Environment Canada Atlantic Region, Oil Spill Response Plan (Environment Canada Atlantic Region, August 1999), at 10 and 11.

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The CCG is principally charged with maritime safety, particularly search and rescue (SAR). Transport Canada is also concerned with maritime safety, with a principal focus on policy and regulation. Transport Canada controls the certiﬁcation of ships and sea-going personnel, regulates maritime safety and environmental protection, and determines transportation (including maritime) policy. It is charged with developing and administering policies, regulations and services to ensure a Canadian transportation system that is safe, secure, efﬁcient, affordable, integrated and environmentally friendly. A places of refuge policy structure would therefore have to include both CCG (to co-ordinate, direct, monitor and engage in the initial search and rescue effort and to ensure the safety of human life), and Transport Canada (to provide assistance to the ship vis-à-vis its request for a place of refuge and limiting or precluding environmental damage). Other maritime nations, e.g., the United States and the United Kingdom, vest direct control for places of refuge in their coast guard agencies, giving them the beneﬁt of a uniﬁed chain of command and responsibility. In both countries the coast guard has historically been directly involved with commercial shipping and in the regulation and monitoring of maritime activities. In Canada, these functions have been the domain of Transport Canada, and it can be argued that Transport Canada is most closely connected with the commercial maritime industry. This would give it an advantage in the highly charged and visible decision-making process for places of refuge. In contrast, CCG would lack immediate access to the resources and information needed in a place of refuge decision-making scenario. Furthermore, CCG would, in any case, need access to the resources of Transport Canada, which has control of the vessel’s history, certiﬁcation and documentation. Given Transport Canada’s current mandate and the division of authority between Transport Canada and the CCG, the direct involvement of Transport Canada in the places of refuge decision-making process is inevitable. However, as explained above, the lead decision-making authority for places of refuge would need to call upon the expertise of other government agencies such as Environment Canada, REET, CWS, the Canadian Ice Service, the Meteorological Service of Canada, and the certiﬁed Regional Response Organisations.71

Legal Issues As seen, despite the international conventions supporting protection and preservation of the marine environment and the granting of refuge to ships in distress, there is no absolute and unequivocal obligation for states (including Canada) to

71

On the role of these organisations, see SSOPF Report, supra note 57.

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grant access to a ship in need of assistance. Current expert legal opinion suggests that the traditional and customary obligation of states to offer a place of refuge to a ship that needed assistance has been superseded or diluted by the interests of the coastal state in guarding against the potential damage to their environmental and economic interests from modern cargoes like oil.72 Section 3.12 of the IMO Guidelines notes that: ‘When permission to access a place of refuge is requested, there is no obligation for the Coastal State to grant it’.73 Thus Canada may justiﬁably refuse access to a place of refuge if it reasonably determines that the potential risks to its environment, coastal populations, and economy if access is granted, outweighs the risk to life and property if entry is refused.74 From the legal perspective, a distinction is made between a ship in distress, and a ship in need of assistance. The IMO Guidelines distinguish between responding to ships to save lives, i.e., humanitarian concerns and obligations (ships in distress as covered by the SAR Convention) and responding to ships for mitigating or preventing economic or environmental loss or harm (ships in need of assistance). Article 1.18 of the IMO Guidelines deﬁnes a ‘ship in need

72

A. Chircop, “Living with Ships in Distress – A New IMO Decision-Making Framework for the Requesting and Granting of Refuge”, 3(1) WMU Journal of Maritime Affairs, 2004, Spring 2004, at 34. 73 IMO Guidelines, supra note 5, s. 3.12, “Decision-Making Process for the Use of a Place of Refuge”. IMO determined, in May 2001, that the use of the term ‘ports of refuge’ might be too narrow and restrictive vis-à-vis the envisaged scope of the geographical area that might, in an emergency, be able to provide facilities and services (including contingency arrangements) to ships in distress or in need of assistance, in particular laden tankers. (E. Mitropoulos, Places of Refuge, BIMCO Review 2004 (Bagsvﬂrd, BIMCO, 2004), at 56.) Hence, IMO proposed the use of the wider term ‘places of refuge’. This term implies that the assessment and range of options available includes sheltered coastal waters and anchorages (not necessarily near the major ports). The degree of risk to the ship and its crew and cargo, as well as to the environment, coastal communities and the salvors, can be attenuated by performing remedial activities in such sheltered waters rather than in a port. The reasoning here is that sheltered waters may often be more conducive to limiting overall risks than ports because the negative economic impact would be reduced and measures to contain and mitigate toxic spills could be implemented with greater ease. These factors offset the additional costs of deploying and maintaining equipment and building infrastructure in the vicinity of such sheltered (and often remote) coastal waters, as compared to operating ports which would already have most of the equipment in place and a fairly well-developed infrastructure. This is an important consideration for Canada with its expansive lengths of remote and sparsely populated coasts. 74 E. Van Hooydonk, “The Obligation to Offer a Place of Refuge to a Ship in Distress”, The Work of the Comité Maritime International (CMI) – Part II (Antwerp, CMI, 2002), 428.

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of assistance’ as ‘a ship in a situation, apart from one requiring rescue of persons on board, that could give rise to loss of the vessel or an environmental or navigational hazard’. As noted earlier, Canada subscribes to the SAR Convention. Concerning liability and compensation, Canada is well placed in terms of dealing with the private law side of the issue. Canada’s obligations under the International Convention on Civil Liability for Oil Pollution Damage, 1969 as amended75 (ratiﬁed by Canada in January 1989) and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 197176 as amended (ratiﬁed by Canada in April 1989), are recognised in Part 6 of Canada’s Marine Liability Act, 2001.77 Although Canada has not ratiﬁed the Convention on the Limitation of Liability for Maritime Claims, 1976,78 nor its amending Protocol of 1996, it has implemented the provisions of both in Part 3 of the Marine Liability Act.79 Canada has established regulations for a Ship-Source Oil Pollution Fund under the aegis of the Marine Liability Act.80 Building on the existing response frameworks in Canada would mean there are few new legal initiatives necessary to implement the IMO Guidelines and a national places of refuge policy. However, the appointment of a decision-making authority for dealing with requests for places of refuge from ships in need of assistance would require legal action, as would the conferring of immunity from civil or criminal prosecution to a party/parties involved in a place of refuge request scenario, if this is deemed necessary. Currently, the federal Minister of Transport, Transport Canada pollution prevention ofﬁcers and port authorities are given wide powers to direct vessels to certain places (or to disallow vessels from entering Canadian waters or particular areas) under the Canada Shipping Acts, 1985 and 200181 and the Canada

75 International Convention on Civil Liability for Oil Pollution Damage, 1969, 9 I.L.M. 45. Ratiﬁed by Canada in January 1989. Refer to the SSOPF Report, supra note 57, at vii for the compensation limits currently applicable in Canada. 76 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1971, 11 I.L.M. 284. Ratiﬁed by Canada in April 1989). Refer to the SSOPF Report, supra note 57, at vii for the compensation limits currently applicable in Canada. 77 Marine Liability Act, 2001, R.S. 2001, c. 6 (hereafter MLA), Part 6. 78 Convention on the Limitation of Liability for Maritime Claims, London, 1976, 16 ILM 606 and Protocol of 1996 to Amend the Convention on the Limitation of Liability for Maritime Claims, 1976, 35 ILM 1406 (1996). 79 MLA, supra note 77, Part 3. 80 Ibid., Art. 77; Marine Liability Regulations, Part 1, Ship Source Oil Pollution Fund, <www.tc.gc.ca/acts-regulations/GENERAL/m/mla/regulations/001/mla001/mla001.htm>, 4 August 2005. 81 CSA 1985, supra note 21, s.562.18(1) and CSA, supra note 22, s. 175(1).

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Marine Act, respectively.82 Canada’s Marine Transportation Security Act,83 also gives powers to the security ofﬁcials of Transport Canada to direct, seize, arrest or detain a vessel in all Canadian waters, including in the EEZ, territorial sea and inland waters. More recently, Bill C-15, An Act to Amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999,84 gave sweeping and unprecedented powers to game ofﬁcers, inter alia, to direct a vessel to any area within Canadian jurisdiction. The jurisdictions of these authorities overlap in Canada’s EEZ, territorial sea and, especially, in the navigable waters of the port. It is obvious that these overlapping jurisdictions must be addressed in Canada’s policy on places of refuge. From the legal perspective, the policy should clearly identify the federal government authority that would have overriding powers in a place of refuge situation. Given the extensive authority already vested in Transport Canada, it would be difﬁcult to develop a viable places of refuge policy in Canada without vesting substantial decision-making authority regarding refuge with Transport Canada. The Canada Shipping Act, 2001,85 Migratory Birds Convention Act, 1994,86 Fisheries Act, 1985,87 Canadian Environmental Protection Act, 1999,88 and Bill C-15 (2005), impose severe criminal liability and penalty measures for discharge of pollutants by persons or by ships. Extending criminal liability to include the nationally-designated places of refuge decision-makers would be counter-productive. Similarly, the master and ofﬁcers of the ship seeking assistance should be excluded from criminal liability charges if they have complied with the directions of the designated authority.

IMPLEMENTING THE IMO GUIDELINES AND A PLACES OF REFUGE POLICY IN CANADA The IMO Guidelines represent international consensus on the issue of decisionmaking by the master, salvor and coastal authorities on places of refuge. Although they are not legally binding, they will be implemented widely and may eventually become a standard for diligent conduct (see Chapter 2). Canada should consider legislating the IMO Guidelines into its places of refuge decision-making structure.

82

CMA, supra note 38, ss. 108–116. MTS, supra note 43. 84 House of Commons of Canada, “Bill C-15: Section 8.1”, Statutes of Canada 2005, c. 23, 26 October 2004, at 9. 85 CSA 2001, supra note 22, s. 137(2). 86 Migratory Birds Convention Act, 1994, R.S. 1994, c. 22, s. 13. 87 Fisheries Act, R.S. 1985, c. F-14, s. 40. 88 Canadian Environmental Protection Act, 1999, R.S. 1999, c. 33, ss. 272–274. 83

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The implementation of the IMO Guidelines should allow for case-by-case decision making. Incident-speciﬁc measures would be taken after notiﬁcation of an incident by the master and the request for assistance. The master would arrange for salvage services as necessary, in consultation with the Canadian reporting authority. This authority would be required to provide advice to the master on the facilities and equipment available in a place of refuge, if necessary. As the circumstances warrant, a boarding team will inspect and assess the ship and its condition from the perspective of granting or denying access to a place of refuge, and report the ﬁndings to all interested parties. A national policy should vest decision-making authority on refuge requests in the Regional Director of Transport Canada in the region of the ship in need of assistance. CCG’s Marine Communications and Trafﬁc Services organisation would be a logical choice to serve as the MAS body speciﬁed in IMO’s resolution on the subject. Additional training and information dissemination would, of course, be necessary to enable both of these parties to fulﬁl these roles. In a distress situation the Maritime Rescue Co-ordination Centre (of which CCG is a part) is the initial contact for the ship and the lead decision-making authority.89 At the same time, Transport Canada, given its policy and regulatory functions, would be in a good position to rapidly access required documentation and information from the ship, its owners and operators or agents, other federal government organisations (such as Environment Canada and CCG), spill response organisations, tug operators, salvage associations, ship repair yards and ship repair facilities, and classiﬁcation societies to make an effective, rational and equitable decision concerning a request for refuge. Having another federal organisation undertake the function of evaluating and responding to the request for assistance and a place of refuge offers an opportunity for a second opinion and assessment at a time of high emotion and stress. If search and rescue are not required, Transport Canada would be able to step-in immediately and begin the assessment process. Furthermore, Transport Canada would have an advantage garnering any necessary support from other modes of transportation and infrastructure providers to ensure a speedy and integrated response to a request for refuge. Hence, a co-ordinated, two-pronged Canadian federal response structure involving two federal ministries – DFO (CCG) for the humanitarian search and rescue component and Transport Canada for the providing of assistance and evaluating the request for a place of refuge, is recommended. Other Canadian federal departments and agencies, as well as private organisations and individuals with expertise in the providing and co-ordinating of pollution response, environmental, security and legal measures would be activated as necessary, in any place of refuge incident. The command, control and co-ordination framework necessary for compliance with

89

CSA 2001, supra note 22, s. 130 (Search and Rescue).

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the IMO Guidelines in Canada could be superimposed on the existing maritime control and co-ordination infrastructure. On the one hand, advance designation of places of refuge in Canada would have the advantage of removing the uncertainty in the decision-making process and providing accurate and timely information on equipment, facilities, risks and beneﬁts of particular sites. On the other hand, the potentially negative public attitude, the impossibility of predicting the exact nature and degree of threat scenarios and response mechanisms, and the sheer number of places of refuge that would need to be identiﬁed along Canada’s extensive coastline, along with the need for environmental assessments of potential sites, renders the advance designation of places of refuge unviable. Instead, gathering comprehensive coastal zone data relevant in the determination of the suitability of sites along the coastline would be a pragmatic, cost-effective and ﬂexible approach to the issue and would enhance the decision-making process. Hence, pre-designation of places of refuge in Canada is not recommended. Issues of ﬁnancial cost-recovery, and compensation and insurance arrangements should also be addressed in Canada’s policy. Here consideration needs to be given to the development of means to compensate port or harbour authorities and other organisations that provide places of refuge. This is suggested to encourage the co-operation of these parties and to facilitate the processing of requests for places of refuge. Consistent with CLC and IOPC Fund practices, certiﬁcation of ﬁnancial responsibility could be demanded. There is an argument that the port providing refuge should be entitled to a salvage award.90 A salvor would not be able to accomplish his task without access to a place of refuge. If this is the case, it is justiﬁable that the port also obtains a salvage reward or, at least, a portion of the normal salvage fee awarded to the salvor. The expectation of a ﬁnancial compensation for economic, environmental and property losses suffered from granting a place of refuge to a ship would instil a degree of conﬁdence in the port and harbour authorities and promote fair, objective and rational decision-making after assessing a request for a safe haven from a ship or from the salvor. The relevant rules could be developed on the basis of the existing principles of salvage law.91 The objective is to provide a reasonable degree of incentive to Canadian ports, so that, should the need arise, the ports would be more inclined to extend their co-operation.

90 91

E. Van Hooydonk, supra note 74. Ibid., 442.

Considerations for Determining a Canadian Approach

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CONCLUSION A national places of refuge policy is an essential component of Canada’s oceans management strategy. A cohesive and robust structure for conﬂict resolution will help assure the continued progress and development of all oceanbased industries and minimise threats to Canada’s oceans and marine environment. The Canadian and international experiences of ships in need of assistance and the lessons learned dictate that developing a place of refuge policy is not only prudent, but imperative if Canada is to continue to be a major player in the global marketplace. The preparatory measures and the incident-speciﬁc measures set out in the IMO Guidelines lay out a logical set of directions, input data for decision-making and evaluation procedures encompassing all aspects of the unfolding threat scenario, to arrive at a balanced, rational and just decision in the best interests of all the concerned parties. Incorporating the requirements of the IMO Guidelines into existing governance structures and chains of command and control avoids unwieldy bureaucratic frameworks and is ideally suited to the Canadian context. Lead decision-making authority with regard to places of refuge scenarios should be vested in the Regional Director of Transport Canada, in the region of the ship in need of assistance, while CCG maintains its role in search and rescue (serving as Canada’s designated MAS body). The measures suggested here to design a Canadian national policy on places of refuge are comprehensive, pragmatic and ﬂexible and are tailor-made to the existing command and control infrastructure of Canada, and worth consideration by the Government of Canada.

The Contributors Paul Albertson LCDR Paul Albertson has served the last 15 years in the US Coast Guard’s Marine Safety, Security, and Environmental Protection Program, performing missions such as merchant vessel inspection and compliance, marine casualty investigation, and pollution response. He holds a master’s degree in Environmental Management and Economics from The Johns Hopkins University and a master’s degree in Quality Systems Management from the National Graduate School. He is currently serving at Coast Guard headquarters as Chief, Port and Environmental Management Division in the Marine Safety Ofﬁce of Response.

Sam Bateman Dr Sam Bateman retired from full-time service in the Royal Australian Navy as a Commodore (one-star) in 1993 and became the ﬁrst Director of the Centre for Maritime Policy at the University of Wollongong in New South Wales where he is now a Professorial Research Fellow. His naval service as a surface warfare ofﬁcer included four ship commands (including a frigate and a destroyer), ﬁve years in Papua New Guinea and several postings in the force development and strategic policy areas of the Department of Defence in Canberra. Current research interests include regional maritime security, the strategic and political implications of the law of the sea, and maritime co-operation and conﬁdence-

533 Aldo Chircop and Olof Linden (Eds.), Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom. 533–543. © 2006 Koninklijke Brill N.V. Printed in the Netherlands.

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building. Sam Bateman completed his doctorate at the University of New South Wales in 2001. Dr Bateman has written extensively on defence and maritime issues in Australia, the Asia Paciﬁc and Indian Ocean. He is currently a Co-Chair of the Council for Security Cooperation in the Asia Paciﬁc (CSCAP) Study Group on Capacity Building for Maritime Security Cooperation, and a Senior Fellow in the Maritime Security Programme at the Institute of Defence and Strategic Studies (IDSS) in Singapore, as well as a member of the National Oceans Advisory Group (NOAG) established by the Australian Government to advise on the implementation of Australia’s Oceans Policy.

Aldo Chircop Professor Aldo Chircop is faculty at Dalhousie Law School and the Marine Affairs Programme, Faculty of Management, Dalhousie University. A Commonwealth Fellow, Professor Chircop received a Doctor of Laws (LLD) in 1982, Master of Laws (LLM) in 1984 and Doctorate in the Science of Law (JSD) in 1988. He is a member of the Canadian Bar Association, Nova Scotia Barristers Society and Canadian Maritime Law Association. Earlier responsibilities included directorships of: the Marine Affairs Programme (1992–2001) and Marine and Environmental Law Programme (2001–2003) at Dalhousie; International Ocean Institute (1988–1991); Mediterranean Institute (University of Malta, 1988–1989). Professor Chircop is maritime law counsel to Patterson Palmer Law, an Atlantic Canada-wide law ﬁrm. Between July 2003 and June 2005, Professor Chircop was on leave of absence from Dalhousie, holding the Canadian Chair in Marine Environment Protection at the World Maritime University in Malmö, Sweden. He is Honorary Research Associate at the University of Wales Swansea and the University of New Brunswick. Professor Chircop has published widely and is co-editor of the Ocean Yearbook (University of Chicago Press and Transnational Press). His most recent book is Canadian Maritime Law (Toronto, Irwin Law, 2003), coauthored with Edgar Gold and Hugh Kindred. In 2002 he was the recipient of the Distinguished Service Award at the Dalhousie’s Faculty of Graduate Studies.

Mark Clark Mark Clark began his broadcasting and journalistic career in the late 1970s and worked for a time on local and national radio, both with the BBC and independent organisations. He has worked across Europe and has spent considerable time within the print and broadcast media, and at one time ran his own company for 11 years.

Contributors

535

Following a move into Government Communications, Mr Clark has had experience across a wide range of agencies and departments and has spent time within the Press Ofﬁce at No. 10. He has assisted in setting up a press ofﬁce for the controversial Child Support Agency; has acted as a personal press ofﬁcer for the Secretary of State for Health; taken the media lead with the Police and Under Sheriff during battles with anti-road protesters during various controversial road schemes in the mid-1990s and delivered lectures on crisis media handling. Mr Clark moved to the Coastguard in late 1996 and has dealt with the media in full cry on numerous occasions when shipping incidents and accidents have hit the headlines.

Rosa Mari Darbra Roman Rosa Mari Darbra Roman has recently completed a doctorate at the Polytechnic University of Catalonia (UPC) under the Programme of Engineering projects and environment. She graduated in Environmental Science at the Autonomous University of Barcelona (November, 2000; Extraordinary Award of Final Studies). In June 2002, Dr Darbra completed the research Aptitude Degree (Diploma of Advanced Studies) at UPC. In November 2002, she attended to LRQA Environmental Management Systems Auditor Training Course being certiﬁed by Lloyd’s Register. Her research interests are based on two main themes: (1) Evaluation of the environmental management carried out in ports. (This research is being carried out in the frame of a European Project called ECOPORTS (2002–2005).) Dr Darbra is a member of ECOPORTS Scientiﬁc Research Team and has been working on the development of several tools such as the SDM (self diagnosis method), SOSEA (strategic overview of signiﬁcant environmental aspects), etc. (2) Risk assessment in ports (e.g., historical analysis of accidents in ports, prediction of the frequency of accidents in ports by event trees, etc.). Dr Darbra has presented papers in conferences and congresses such as the ‘9th Mediterranean Congress Chemical Engineering’, ‘IV Meeting on Reliability Fundamentals and New Technologies’, Environmental Challenges for Sea ports, ECOPORTS Conferences, 11th International Symposium Loss Prevention and Safety Promotion in the Process Industries, etc. She published papers in journals such as Safety Science (‘Historical analysis of Accidents in Seaports’), Journal of Loss Prevention in the Process Industries (‘Predicting the frequency of accidents in port areas by developing event trees from historical analysis’) and Marine Pollution Bulletin (‘A New Methodology to Assess Environmental Management in Sea Ports’).

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Contributors

Patrick Donner Professor Donner received an LLM from the University of Turku. He qualiﬁed for the bar in Finland (vicehäradshövding) in 1977 and served on the bench as deputy judge and acting chief judge of the City Court of Mariehamn for several years in the late 1970s. Professor Donner served the Sally Shipping group for 12 years, advancing from chief legal counsel and company secretary to deputy managing director with responsibility for the legal affairs of the group, which had ferry operations in Scandinavia and the United Kingdom, and cruise operations in the Caribbean. After the Sally Group he was managing director for Delﬁn Cruises Ltd. in Finland, operating cruises in the Baltic, after which he ran his own law and management consultancy ﬁrm for a few years. During all this time he taught maritime law (part-time) at the Maritime Academy of Åland and also held numerous non-executive positions on boards of directors of shipping and insurance companies as well as elected public ofﬁce at local level. Since January 1995 Professor Donner has been at the World Maritime University in Malmö, Sweden, as Associate Professor in Shipping Management, teaching international post-graduate students in all commercial aspects of shipping with an emphasis on maritime and commercial law.

Gotthard M. Gauci Dr Gotthard Mark Gauci is a lecturer in law at the University of Wales Swansea and previously taught at the University of Wales Cardiff. His areas of specialisation and research are shipping law and environmental law. Dr Gauci is the author of Oil Pollution at Sea – Civil Liability and Compensation for Damage (John Wiley, 1997) and is also a contributor to Benedict on Admiralty.

Uwe K. Jenisch Professor h. c., Dr. iur. Uwe Karl-Heinz Jenisch is currently teaching international law of the sea at the Walther Schücking Institute for International Law of the University of Kiel, Germany. He is also a Board Member of the OstseeInstitut für Seerecht und Umweltrecht of the University of Rostock, Germany and a visiting professor of the WMU, Malmö, Sweden. He holds a Dr. iur. degree of the University of Kiel (1970) based on extensive studies as a visiting researcher at Harvard Law School (1968). Beginning in 1970 until December 2003, Dr Jenisch served as a councillor in several ministries of the Federal and Länder administration of Germany. His functions included international co-operation in space (1970–1973), EU affairs/international trade and development (1974–1980), mining and offshore industries (1980–1986), maritime transport and maritime policy (1987–2003).

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537

From 1975–1982 he was a member of the German delegation to the Third United Nations Conference on the Law of the Sea and participated in all sessions of that period, with a special interest in the negotiating process of the general law of the sea and the International Tribunal of the Law of the Sea. Over the last decades he was a member of various maritime fora, both on the European (EU Maritime Industries Forum, MIF) and on national level (Meereswirtschafts-Kommission and others). Throughout his career in government Dr Jenisch served as an ofﬁcer of the German Navy Reserve with the latest rank of a Navy captain. Since 1968 he has published widely on law of the sea subjects, regional marine environmental law and industrial uses of the sea. His current research focus is on maritime safety, security and accident management. In this capacity he has been advising governments including the European Parliament and the maritime transport industry.

Philip John Mr Philip John is currently the Fleet Manager of Rigel Shipping Canada Inc., a petroleum product and chemical tanker company based in Shediac, New Brunswick, Canada. He has been working in the marine ﬁeld throughout his career and was a Marine Superintendent with Texaco Marine Services Inc. in Port Arthur, Texas, USA, before his move to Canada. He sailed for twelve years on the tanker vessels of the Shipping Corporation of India. After his tenure as a Chief Engineer, he was a Marine Superintendent in Bombay at the Head Ofﬁce of the Company for two years, before he moved to the United States. Besides his Chief Engineer’s Marine Certiﬁcation, Mr John has a degree in Marine Engineering, MBA and a MSc in Maritime Management from the Maine Maritime Academy in Castine, Maine, USA. He is presently working on his Ph.D. at the University of New Brunswick, Fredericton, New Brunswick, Canada, concurrently with his responsibilities as the Fleet Manager of Rigel Shipping Canada Inc. His PhD research subject is ‘Places of Refuge for Eastern Canada’. Mr John is also the Vice-President of the Transportation Club of Moncton, New Brunswick, Canada, and is actively involved in many community activities and charitable organizations. He has won a national award for ‘Gallantry at Sea’.

Hugh M. Kindred A member of the Bars of England and Nova Scotia, Hugh Kindred is Professor of Law at Dalhousie University, Halifax, Canada where he teaches in the areas of international law, marine transportation and commercial law. From

538

Contributors

1985–1986 he worked as a Senior Legal Ofﬁcer in the Shipping Division of UNCTAD in Geneva and during 1996–1997, as well as 2001, he was the Director of the Marine and Environmental Law Programme at Dalhousie Law School. In 1998 he was a Parsons Scholar and visiting professor in Maritime Law at the University of Sydney, Australia, and in 2001 he chaired an Ad Hoc Expert Meeting on the regulation of multimodal transport for UNCTAD at Geneva. Hugh Kindred has advised governments and other public bodies, including Transport Canada (regarding shipping legislation) and the N.S. Department of Natural Resources (on maritime boundaries). In 2003 the Canadian Association of Law Teachers presented Professor Kindred with its Award for Academic Excellence. Among his published work in international, maritime and commercial law is a book with Max Ganado on Marine Cargo Delays (1990) and another with Dr Mary Brooks on Multimodal Transport Rules (1997). Together with Dr Edgar Gold and Dr Aldo Chircop he also published a new Canadian text on Maritime Law (2003). Hugh Kindred was the project co-ordinator and coauthor of a study in 1982 for Transport Canada on The Future of the Canadian Carriage of Goods by Water Law and subsequently he assisted the Department in the preparation of the Canadian Carriage of Goods by Water Act 1993. He is also the co-general editor and co-author of International Law Chieﬂy as Interpreted and Applied in Canada, forthcoming in a 7th edition, with a supporting web site, in 2005.

John H. Liljedahl John Liljedahl, LLM (Copenhagen), was originally educated as a Master Mariner and served in the Danish merchant marine. Acquiring a law degree, he joined the Danish Register of Shipping and later Baltica, the leading insurance company in Denmark. While employed with the latter as a claims and contract manager from 1980 to 1992, he taught marine insurance and maritime law at the Danish Institute of Insurance Studies. He was also the chairman of the Legal Committee of the Danish Marine Underwriters Association. In 1992 he was admitted to the Danish Bar and set up his own law ﬁrm in Copenhagen, at the same time as he maintained the position of lecturer with the Danish Maritime Authority. Since 1999 Mr. Liljedahl has been lecturer at the World Maritime University on secondment by the Danish Government. His publications include Liability and Insurance in Respect of Pollution and articles on shipping and maritime law in The Danish Encyclopedia.

Contributors

539

Olof Linden Professor Olof Linden holds the Chair in Marine Environmental Management at the WMU. His background is in marine environmental toxicology having a PhD from Stockholm University. Professor Linden has been involved in a large number of projects focusing on coastal and marine environment issues around the world. During the last 10 years projects have been focused on institutional strengthening and capacity building in the area of integrated coastal management in Asia and the western Indian Ocean. He holds an Adjunct Professorship Coastal Resource Management at the University of Kalmar, Sweden. Professor Linden is the project leader of the CORDIO project (Coral Reef Degradation in the Indian Ocean), a project implemented in 12 countries in the Indian Ocean. Professor Linden has published articles and books focusing on environmental issues and coastal management in developing countries and on coral reefs and climate change.

Proshanto K. Mukherjee Proshanto K. Mukherjee is ITF Professor of Maritime Safety and Environmental Protection, and Director of Doctoral Programmes of the World Maritime University (WMU) in Malmö, Sweden. He is Honourary Research Fellow of the University of Wales Swansea and Academic Co-ordinator of the joint PhD programme in Maritime and Commercial Law of the WMU and University of Wales Swansea. He has served as external examiner for PhD at University of Wales Cardiff and is presently joint supervisor for PhD candidates at University of Wales Swansea and Lund University, Sweden. Professor Mukherjee started his sea-going career as an ofﬁcer cadet on the Training Ship Dufferin in Bombay and spent sixteen years at sea, including command time, on ships of various types and under various ﬂags. He read law at Dalhousie University, Canada, and obtained his PhD from University of Wales Swansea. He was called to the Bar of Ontario and practiced there as a barrister and solicitor. He served as Senior Adviser, Maritime Policy and International Affairs of the Canadian Hydrographic Service before being appointed by the International Maritime Organization (IMO) as Senior Deputy Director and Professor of Maritime Law of the International Maritime Law Institute in Malta. He was formerly IMO Legal Adviser for the Caribbean Region and continues to serve periodically as Maritime Legislation Consultant to the IMO. He has drafted shipping and marine environmental legislation for some twenty-ﬁve jurisdictions around the world. Professor Mukherjee is the author of Maritime Legislation, published by WMU Publications in 2002. The book is the only comprehensive text on the subject and has received excellent reviews. He has numerous publications to

540

Contributors

his credit embracing virtually every aspect of public and private maritime law. These include articles in peer-reviewed journals and conference and symposia proceedings. He is co-editor of Maritime Violence and Other Security Issues at Sea, published by WMU Publications, 2002. He is currently co-authoring the Fourth Edition of Farthing on International Shipping, the previous editions of which have gained worldwide renown. He was previously a member of the Advisory Board of Editors of the Journal of Maritime Law and Commerce and is presently a member of the Editorial Advisory Board of the WMU Journal of Maritime Affairs, and of the Editorial Board of the Journal of International Maritime Law. Professor Mukherjee is a Fellow of the Nautical Institute and an Associate Fellow of the Royal Institute of Navigation in London.

Detlef Nielsen Professor Detlef Nielsen, PhD, is the Nippon Foundation Professor of Maritime Administration at World Maritime University, Malmö, Sweden. He sailed as a navigating ofﬁcer and Master in various ship types before coming ashore as a marine surveyor and consultant on transport and storage of various cargoes. He then obtained an MSc in International Transport (with distinction) and a PhD from University of Wales, Cardiff in Maritime Economics. Professor Nielsen’s most recent positions were Senior Research Associate/Deputy Director of the Seafarers’ International Research Centre followed by six years as Assistant Professor in the Department of Shipping and Transport Logistics in the Hong Kong Polytechnic University, where he was also a Consultant to the Hong Kong Port and Maritime Board and the Hong Kong Marine Department.

William Ritchie Professor Ritchie is presently the ﬁrst Director of the Aberdeen Institute of Coastal Science and Management at Aberdeen University. He is also an Adjunct and Visiting Professor at the World Maritime University in Malmö, Sweden. He has a long and varied connection with the Shetland Islands, including research and advisory work for the Countryside Commission and Scottish National Heritage since the 1970s, Chairman of ESGOSS (Ecological Steering Group and the Oil Spill (‘Braer’) in Shetland), a member of SOTEAG since 1980 and Chairman of its Monitoring Committee since 1995. His academic background is primarily in coastal geomorphology but this has expanded into coastal management (including oil spill contingency planning and the impact of oil/gas pipelines on beaches and dunes). Since his return to Scotland from Lancaster University in 2002 he has helped with coastal environmental impact assessment advice in Azerbaijan, provided advice on the management of

Contributors

541

Scottish Marine Resources and helped formulate several research proposals to the European Union that include applications of coastal zone management to Scotland. Professor Ritchie has had long and continuing research and advisory work with the oil industry including various types of environmental impact assessment and management. Of particular relevance is his expertise in oil spill contingency planning and response, including some experience with wildlife rescue during the ‘Braer’ oil spill. He also provided initial advice to the ‘Sea Empress’ oil spill incident in Milford Haven. In the 1970s and 1980s he held various visiting positions in Louisiana State University, USA, where his main research was on natural changes to barrier island and coastal systems. Some work was also done in the USA in relation to oil spill prevention and clean up. In addition to ‘oil-related’ research Professor Ritchie also studies coastal ﬂooding, risk analysis, sand dunes and conservational management – all in a coastal zone setting.

Jens-Uwe Schröder Jens-Uwe Schröder graduated from the University of Rostock, Germany with an MSc in Transport Engineering (Dipl-Ing. Verkehrsingenieurwesen). In 2003 he completed his PhD in Safety Science at the University of Wuppertal, Germany. His thesis was about causes of marine casualties and underlying factors. As a former seafarer, Dr Schröder obtained practical experience on board chemical tankers as a holder of a Master Marine Licence (Kapitän AG). After working in the Logistics Department in the European Head Ofﬁce of Yang Ming Lines in Hamburg, Germany, he joined the classiﬁcation society Germanischer Lloyd, working in the head ofﬁce in Hamburg, Germany. He dealt with ship safety tasks and was engaged in manning and qualiﬁcation matters. He also worked as project manager for customer related services and as a consultant for European ﬂag state administrations. In October 2000 he joined the World Maritime University, Malmö, Sweden. Dr Schröder currently holds a position as Assistant Professor, lecturing and researching on Human Element in Marine Casualties Investigation and Ship Safety related topics. He is also Assistant Editor of the WMU Journal of Maritime Affairs.

Angela Shairp Angela Shairp has been working in the maritime industry for twenty years in a range of roles, from managing (and occasionally working on) the last cargocarrying ‘puffer’ on the west coast of Scotland, to her present position in the

542

Contributors

Sydney head ofﬁce of Adsteam Marine, a major international towage company, where she is currently the ISM/QA Accreditation Manager with responsibility for the development, implementation and maintenance of Adsteam Marine’s Quality Assurance system, and its ISM compliant vessel safety management system. She completed her MA (Maritime Policy) at the University of Wollongong in 2003.

Toby Stone Toby Stone spent 12 years at sea as a Deck Ofﬁcer with BP Shipping serving on a variety of tonnage prior to joining the Maritime & Coastguard Agency 16 years ago. Since joining the agency he has worked in a variety of posts including Maritime Rescue Centres; Senior Lecturer Coastguard Training Centre; Operations Ofﬁcer Marine Pollution Control Unit where he was the lead ofﬁcer for UK OPRC implementation. His last post was based in Aberdeen as the Principal Counter Pollution and Salvage Ofﬁcer for Scotland and Northern Ireland, one of four posts created after recommendations in Lord Donaldson’s report into Command, Control, Salvage and Intervention, also acting as understudy to the Secretary of States Representative for Maritime Salvage and Intervention. He has been involved in and attended the majority of maritime shipping casualties in the UK pollution zone since 1997, including the ‘Sea Empress’ and ‘Ever Decent’. In addition he attended the recent ‘Prestige’ and ‘Tricolor’ incidents in France. Mr. Stone joined his present post in April 2004 as Head of Counter Pollution and Response for the United Kingdom Maritime and Coastguard Agency (MCA), Headquarters, based in Southampton. The post includes the overall management of the Emergency Towing Vessel Contract, Aerial Surveillance and Dispersant Spraying Contract, National Pollution and Salvage Stockpile Contracts, National Hazardous and Noxious Substances Response Team Contract. The Headquarters team provides operational, scientiﬁc and technical support to the regions of MCA and other governmental and external bodies. He is the immediate past president and chairman of the Bonn Agreement. He also sits on a number of IMO and European Commission committees linked to salvage and marine pollution. This included the IMO and EC committees on places of refuge. He also wrote the places of refuge submission for the UK to the European Commission which complied with the Directive EC 2002/59.

Eric Van Hooydonk Prof dr. Eric Van Hooydonk (1965) is a professor of maritime and transportation law and of international law of the sea at the University of Antwerp. As a

Contributors

543

practising lawyer, he runs a law ofﬁce in Antwerp. Since 2000, he is the chairman of the European Institute of Maritime and Transport Law, which was created at the University of Antwerp in 1993 in order to study and promote EU transportation law. He is a member of several professional and scientiﬁc associations as well as of editorial boards of legal reviews. Prof Van Hooydonk’s main areas of practice are European maritime and seaports law, public maritime law, general maritime law and international law of the sea. His doctoral thesis (1994) consisted of an in-depth analysis of the legal aspects of port management and administration, which was awarded the Director-General Suykens Prize for Port Studies by the Royal Academy for Overseas Sciences in 1995. Prof Van Hooydonk is a Titulary Member of the Comité Maritime International and an active member of the Sub-Committee on Places of Refuge of the CMI.

INDEX Acts of God, 8, 310 Advisory Committee on Pollution of the Sea (ACOPS), 429 Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and Other Harmful Substances (Bonn Agreement), 98, 102, 138, 198n152, 233n4, 443–444 Counter Pollution Manual, 444 Algeria, 209n204, 418n7 Allision (see Collisions) Anchorages, 463, 464 (see also, Refuge) Antigua and Barbuda, 209n208 Aquaculture, 2, 5, 15, 26, 42, 64, 69, 72, 84, 86, 87, 307, 450, 511, 520 Arbitration, 184, 185, 267–268 (see also, ITLOS) Archipelagic waters, 41, 195, 240–242, 244, 245 sea lanes, 234, 242–245, 265 Argentina, 205, 207 Association Internationale de Dispacheurs Européen (AIDE), 358 Asylum, 6, 191 (see also, Refuge) Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 330, 335 Australia, 30–31, 63, 100, 216–217, 289, 375–413, 476, 482 Australian Maritime Safety Authority, 380, 385, 386, 391, 397–398, 400–401, 404, 405 Great Barrier Reef, 384, 385, 386, 387, 388, 391, 398, 400 National Maritime Place of Refuge Risk Assessment Guidelines, 376, 385–386, 391, 392–413 National Oil Spill Contingency Plan, 380–381, 383, 391, 400 Offshore Constitutional Settlement, 377–380 Protection of the Sea (Powers of Intervention) Act, 386, 403–405 Queensland Safe Haven Guidelines, 382, 384–385 Royal Australian Navy, 406 Seas and Submerged Lands Act, 379

Austria, 478 Automatic identiﬁcation system (AIS), 97, 458, 466, 477 Bahamas, 24, 210n208, 266, 446, 448, 456 Baltic Marine Environment Protection Commission (HELCOM), 98, 102, 458, 476–477 Copenhagen Declaration, 477 Baltic Sea, 31, 40, 252, 467, 469, 471, 476–477, 482 Barbados, 210n208 Belgium, 3, 31, 415–428, 448, 478 Belgian North Sea Contingency Plan, 424–427 Belgo-Flemish Coast Guard, 421, 427 Flemish government, 420–421, 423–424, 426–427 Marine Environment Protection Act, 344, 422 Bermuda, 5 Best available technology, 249, 250 Biodiversity, 61–62, 71, 509 (see also, Convention on Biological Diversity) Biscay, Bay of, 27, 122 Black Sea, 65 Bolivia, 202 Brazil, 202, 210n208, 289 Bulgaria, 203, 204, 205, 206, 210n208, 210n211 Bulk carriers, 388, 510 Burden of proof, 40, 187–188, 192, 249, 302, 311, 339, 368 Canada, 31, 63, 179, 189, 193, 211, 217–218, 247, 275, 288, 318, 356, 365, 367, 505–531 and Greenland, 520, 522–523 and St. Pierre and Miquelon, 520, 522–524 Arctic Waters Pollution Prevention Act, 510 Canadian Coast Guard, 512–513, 521, 522, 523, 525, 529, 531 Canadian Environmental Protection Act, 528 Canada Marine Act, 514–515, 528

546

Index

Canadian maritime law, 512 Canada Shipping Act (1985), 510, 515, 527 Canada Shipping Act (2001), 510, 515, 527 Department of ﬁsheries and Oceans (DFO), 512–513, 529 Environment Canada, 513, 519, 521, 525, 529 Fisheries Act, 528 Marine Liability Act, 336, 527 Marine Spills Contingency Plan, 521 Marine Transportation Security Act, 515, 528 Migratory Birds Convention, 528 Northwest Passage, 513–514 oceans management, 512–514 Oceans Act, 512–513 REET, 521, 524, 525 Ship-Source Oil Pollution Fund, 527 Transport Canada, 505, 507–508, 513, 514, 525, 527–529, 531 Capacity-building (see Education and training) Cargo handling (see Cargo transfer operations) Cargo insurance, 329 See also, Marine insurance Cargo transfer operations, 48–49, 76, 79, 86, 122–123, 137, 179, 182–183, 191, 199, 206, 215, 246, 280, 330, 360, 362, 363–364, 381, 382, 383, 420, 445, 449, 450, 452, 522 Caribbean, 315 Carriage of passengers, 330–331 (see also, Refuge, humanitarian assistance) Charterparties, 20, 317, 452 Chile, 207 China, People’s Republic, 64, 202, 203, 216, 288, 458 Classiﬁcation societies, 109, 300, 303, 322, 529 Climate change, 513–514 Coast guards, 104, 105, 135, 522–523, 525 (see also, Canada; Belgium; United Kingdom; United States) Coastal communities, 26–27, 48, 62, 64, 66, 69, 71–72, 94, 95, 109, 115, 387, 511, 519, 521 Coastal management, 15, 29, 42, 63–74, 90, 116, 269, 512 (see also, Oceans Management)

Collisions, 233, 253, 258, 272, 277, 283, 317, 348, 387, 395, 419, 420, 446, 458, 482 ﬁxed and ﬂoating objects, 326–327 Comité Maritime International (CMI), 112–113, 135, 138, 140, 167, 214, 221, 229, 279, 288, 294, 299, 350, 359 Commercial vessels, 4, 167, 177, 191, 199–200, 219, 223, 234, 405 (see also, Bulk carriers; Container ships) Communications management, 19, 27, 30, 99, 133–134, 142, 145–160, 213, 388, 444, 447, 509 (see also, Maritime assistance services) Conciliation, 267 Conservation, 14, 87–88, 251, 259–260, 500, 511, 513, 514 (see also, Convention on Biological Diversity) Container ships, 510 Contiguous zone, 246 Continental shelf, 415, 506 Contingency planning, 74, 86–91, 99, 113, 116, 122, 138, 142–143, 158, 194, 249, 277, 380, 421, 427, 433, 436, 447, 459, 463, 466, 483, 485, 494–496, 499, 502, 503, 510, 520–524 (see also, Ports, environmental management) Convention Concerning ﬁshing in the Black Sea, 206–207 Convention Concerning the Protection of the World Cultural and Natural Heritage, 72n21, 260n159 Convention for the Uniﬁcation of Certain Rules of Law relating to Assistance and Salvage at Sea, 10, 516 Convention on Biological Diversity, 73n23, 233n5, 259–260 Jakarta Mandate, 73n23, 233n5 Convention on Facilitation of International Maritime Trafﬁc (FAL), 138, 193, 237n22 Convention on Limitation of Liability for Maritime Claims (LLMC), 57, 232, 233, 317, 336–339 1996 Protocol, 336n56, 338, 468, 527, 527 Convention on Maritime Neutrality, 196 Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), 70n17, 260n159

Index Convention on the Control of Transboundary Movement of Hazardous Wastes and Their Disposal (Basel Convention), 261–264 Convention on the International Regime of Maritime Ports, 138, 193, 207, 237n22 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (see London Convention) Convention on the Protection of the Marine Environment of the Baltic Sea Area, 198n152, 233n4 Convention on the Territorial Sea and Contiguous Zone, 195 Convention on Wetlands of International Importance (Ramsar), 70, 88, 233n5, 260 Convention Relating to Civil Liability in the ﬁeld of Maritime Carriage of Nuclear Material, 57, 232 Coral, 61, 71, 241 Costa Rica, 183 Croatia, 210n208, 210n211, 211 Cruise ships, 516–517 Cuba, 185, 188, 190 Cultural heritage (see Marine protected areas, historic sites) Cyprus, 21, 198 Czechoslovakia, 203, 204 Denmark, 31, 177, 200, 201, 202, 203, 204, 208, 209, 216, 252, 259, 288, 455–469, 522–524 Admiral Danish ﬂeet (SOK), 465, 466 Danish Environmental Protection Agency, 463, 523 Danish Maritime Authority, 458 Dispute settlement, 267–268 Eco-management and audit scheme (EMAS), 141 Ecological conditions, 69–71,78, 84, 463 Ecosystems, 14, 61, 251, 259, 511, 519 Education and training, 142, 143, 390, 474, 529 EEC (see European Union) EEZ (see Exclusive economic zone) Electronic chart and information system (ECDIS), 458 Environmental impact assessment (EIA), 250 Environmental protection (see Marine environmental protection)

547

European Maritime Safety Agency (EMSA), 478 European Sea Ports Organization (ESPO), 125, 139–141 Environmental Code of Practice, 140 European Union, 12, 31, 88, 90, 114, 198, 226, 228, 299, 332, 340, 427, 487 European Commission, 135, 213 Habitats Directive, 88 Oil Spill Directive, 290, 297 Vessel Trafﬁc Directive, 31, 98, 101, 120, 122–125, 132, 134, 136, 138, 198, 212–214, 216, 226, 421, 424, 427, 438, 459–460, 463, 466, 469, 477–479, 483 Exclusive economic zone, 41, 241, 242, 244, 247, 258, 264–265, 283, 376, 380, 384, 385, 387, 398, 415, 417, 420, 456, 457, 483, 495, 496, 498, 506, 507, 528 Ferries, 509 ﬁnland, 201, 202, 209, 289, 478 ﬁsh farming (see Aquaculture) ﬁsheries, 2, 5, 14, 15, 42, 64, 71, 84, 248, 300, 307–308, 348, 387, 511, 520 ﬁshing vessels, 4, 167, 172–174, 179, 182, 189, 191, 193, 203, 206–207, 211, 217, 223, 268, 322, 405, 450 ﬂags of convenience (see Ship registration) Force majeure, 1, 8, 10, 195, 202, 208, 210, 211, 212, 220, 224, 243, 245, 256, 311, 395, 396, 422, 516 Formal Safety Assessment (FSA) Guidelines, 97, 100 France, 5, 41, 122, 129, 174, 178, 182–183, 187, 198, 201, 208, 209, 210n208, 210n212, 219, 308–310, 377, 415, 418n8, 419, 420, 448, 452, 459, 471, 478, 522–524 General average, 7, 16, 30, 38, 171–172, 174, 175, 191, 224, 330, 336, 422 and environmental costs, 358–360, 370–371 and freight, 354 and salvage, 357–358, 359, 370 adjustment process, 368–369 artiﬁcial general average, 355, 362 common safety of voyage, 348, 350, 352, 354, 361, 362, 364, 366–367, 369–371 commonality of interest, 363, 366 contribution values, 350, 368–369

548

Index

deﬁnition, 347–350 duty of care in carriage, 365 expenditures, 353, 355–364 intentional loss, 352 non-separation agreement, 364, 367 particular average, 349, 364 peril, 349–350, 352, 353, 366, 370 port of refuge charges, 360–361, 363 Rule Paramount, 364–365 sacriﬁce, 348, 352–354, 361, 362, 369 ship repairs, 361–363 substitute expenses, 355, 363–364 York-Antwerp Rules, 30, 350–353, 354, 357–358, 361, 362, 363, 364, 369, 371 (see also, Jettison) Geographic information systems (GIS), 84, 89, 97, 117, 519 German Democratic Republic, 204, 205 Germany, Federal Republic of, 31, 183, 201, 203, 204, 216, 279, 327, 456, 457, 467, 471–487, 507 CCME, 474–475, 482–487 Framework Agreement on Places of Refuge, 483–485 Grobecker Kommission, 472–474 Project Group on Maritime Accident Management, 472–476 Gibraltar, 272, 459 Great Britain (see United Kingdom) Great Lakes (North America), 65, 509, 526 Greece, 198, 201, 205–206, 272, 478 Greenland (see Denmark) Grenada, 210n208 Guatemala, 183, 201 Hague Rules, 329, 335 Hague-Visby Rules, 329, 335 Haiti, 185, 205 Hamburg Rules, 329, 335 Harbour master, 421, 427, 436, 441, 442, 449 (see also, Ports) Harbours (see Ports) Hazardous and noxious substances, 30, 136, 233, 400–401, 447, 491–494, 497–498, 500 transboundary transport, 15, 110, 119–120, 240, 256, 331, 468 ships as waste, 136, 255–256, 261–264 (see also, Marine pollution; Wreck)

High seas, 41, 192, 196, 242, 244, 247, 252–254, 258, 264, 265–266, 274, 380, 384, 405, 465, 473 High Speed Craft Code, 96–97 Hong Kong, 279 Hull and machinery insurance, 322, 324–330, 333, 334, 340, 342, 346 (see also, Marine insurance) Hungary, 203, 205 Iceland, 209 IMO (see International Maritime Organization) IMO Guidelines on Places of Refuge for Ships in Need of Assistance (see Refuge, IMO Guidelines) India, 205, 289 Indonesia, 210n208, 241, 289 Innocent passage, 4, 41, 43, 164, 195–196, 208–209, 211, 223, 225, 234, 236–240, 243, 244, 245, 265, 395, 418, 419 Inspections and surveys, 499 (see also, Classiﬁcation societies; Ship registration, ﬂag state) Integrated coastal management (see Coastal management) Integrated coastal ocean management (see Coastal management) Integrated coastal zone management (see Coastal management) Internal waters, 225, 236–237, 377, 385, 417, 421, 483 (see also, International law; Ports; UNLOSC) International Aeronautical and Maritime Search and Rescue Manual (IAMSAR Manual), 37, 50 International Chamber of Shipping (ICS), 126, 358 International Convention for the Prevention of Pollution from Ships (MARPOL), 10, 12, 23, 57, 104, 232, 238–239, 250–252, 255, 262, 433, 517, 521 International Convention for the Uniﬁcation of Certain Rules Relating to Limitation of the Liability of Owners of Sea-going Vessels, 335 International Convention on Civil Liability for Bunker Oil Pollution Damage, 289, 303–305, 310, 311, 315, 318, 332, 333, 339, 343, 468 International Convention on Civil Liability for Oil Pollution Damage

Index (1969), 57, 232, 305, 309, 318, 338, 490, 502, 527 International Convention on Civil Liability for Oil Pollution Damage (1992), 57, 232, 287, 288, 294, 303–305, 310–312, 315–316, 318, 331–332, 333, 337–338, 343, 468 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 287, 303–305, 310, 311, 315, 318, 332, 333, 337–338, 343, 468 International Convention on Maritime Search and Rescue, 10, 18, 37, 38–39, 45, 48, 50, 57, 194, 227, 232, 235–236, 348, 397, 516, 526–527 International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC), 57, 121, 194, 232, 250, 434, 436, 440, 443, 457, 517 International Convention on Salvage, 10, 56, 121, 138, 194–195, 232, 233, 236, 250, 273–275, 277–279, 282, 285, 287, 288, 293, 295–296, 315, 324, 357, 359, 388, 390, 396 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971), 318, 490, 502, 527 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1992), 57, 232, 304, 310, 315–316, 318, 331–332 2003 Protocol, 331–332 International Convention on the Safety of Life at Sea, 10, 12, 18, 23, 45, 56, 121, 194, 223, 227, 232, 238, 247, 397, 516 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 10–11, 17, 56, 198, 231, 252–253, 386, 403–405 1973 Protocol, 56, 232, 403 International Convention Relating to the Limitation of the Liability of Owners of Sea-going Ships (1957 Limitation Convention), 335, 337–339 International Court of Justice (ICJ), 165 Chamber for Environmental Matters, 268 International environmental law, 4, 30, 167, 193–195 International Hazardous and Noxious Substances Fund, 304

549

International humanitarian law, 4, 163, 167 (see also, Refuge, humanitarian assistance) International Law Commission, 228 International law, 4, 185, 240, 467 customary, 165–168, 192, 221, 229, 237, 253, 271, 274, 291, 344, 420 duty of mitigation, 293 equity, 341 internal waters, 179, 221, 225, 236–237, 241, 256, 417, 421 necessity, 301–302 protective principle, 4, 17, 43, 164, 193, 224–225, 229, 246 sovereignty, 239 territoriality, 164 (see also, Innocent passage; Law of armed conﬂict and neutrality; Refuge, refuge custom) International law of the sea, 4, 30, 40–41, 164, 167–168, 195–196, 234, 235, 237, 259, 269 International maritime law, 167–168, 192, 224, 232–233, 268, 334, 348, 396–397, 421 International Maritime Organization (IMO), 8, 15, 27–28, 35, 36, 117, 140, 164, 167, 192, 193, 239, 242, 245, 250, 251, 252, 257, 267, 272, 285, 299, 370, 388, 433, 458, 466, 476, 483, 487 Guidelines on VTS, 427 Legal Committee, 28, 36, 45–46, 122, 138–139, 222, 258, 282, 305, 345, 480–481 Maritime Safety Committee, 12, 18, 28, 36, 45–46, 121, 126, 279, 476 Marine Environment Protection Committee, 28, 36, 45–46, 122 (see also, Refuge, IMO Guidelines; Maritime assistance services; World Maritime University) International Oil Pollution Compensation Fund (IOPCF), 135, 300, 304–310, 337, 340, 468, 530 International Oil Pollution Compensation Supplementary Fund Protocol, 304, 310, 315, 318 International Oil Pollution Compensation Supplementary Fund, 310 International Organization for Standardization (ISO), 141 International Safety Management Code (ISM Code), 20, 49, 52, 317, 406, 522

550

Index

International Salvage Union (ISU) , 133, 284, 285, 290 International Ship and Port Facility Security Code (ISPS Code), 474, 475 International Tanker Owners Pollution Federation (ITOPF), 81, 431 International Tribunal for the Law of the Sea (ITLOS), 25, 268 International Union of Marine Insurers (IUMI), 357 Iran, 210n208 Ireland, 5, 21, 124, 203, 216, 218–219 Israel, 203, 205, 289 Italy, 198, 201, 203, 208, 209, 212, 289, 459 Jamaica, 210n208 Japan, 200–201, 204, 205, 206, 288, 327, 418n7 Jettison (cargo), 21, 224, 255, 301, 353, 364 (see also, General average) Korea, Democratic People’s Republic of, 203 Korea, Republic of, 203, 288 Latvia, 200, 201 Law of armed conﬂict and neutrality, 4, 167, 189, 196–198, 209 Lebanon, 212n221 ‘Leper ships’, 297, 299 Liability, 20, 30, 50, 54, 128, 135–136, 138, 141, 143, 234, 318–319, 348, 350, 358, 368–369, 405–406, 468, 480, 490, 502–503, 527 and refusal of refuge, 291–294 cargo and passenger, 329–331, 338–339 collision, 325–327, 328–329, 342 compensation limits, 234 criminal liability, 527, 528 ﬁnancial securities, 333, 468–469 global limitation, 335–338, 343 pollution, 304–312, 317–319, 331–333, 337, 343, 481 shipowner liability, 20, 135–136, 258–259, 288–289, 291, 300, 304, 310, 316–317, 321–323, 329, 332–333, 334–346, 423 (see also General average; Hague Rules; Hague-Visby Rules; Hamburg Rules; Marine insurance; Negligence; P&I insurance)

Liberia, 24, 318 Libya, 181, 212n221, 272 London Convention, 10, 57, 193–194, 232, 254–258, 264, 441 London Treaty of Separation, 417 LOS Convention (see United Nations Convention on the Law of the Sea) Luxembourg, 478 Malta, 198, 288 Mangroves, 71, 241 Marine casualties (see Marine incidents) Marine environmental protection, 3, 6, 9, 12, 13–16, 17, 21, 26–27, 29, 38–39, 42, 48–49, 45, 50, 54, 75–77, 93–95, 99, 101, 125, 143, 192, 213, 225, 232–234, 276, 381, 385, 387, 388, 389, 400, 411, 421, 422, 435–437, 444–445, 450, 464, 465, 468, 490, 496–498, 501, 506, 511, 512–514, 525, 531 particularly sensitive sea areas (PSSAs), 252, 259, 387, 440, 464, 467 (see also, Polluter pays principle; Precautionary principle; UNCED; UNLOSC, environmental protection) Marine incidents, 253, 258, 277, 283, 317, 385, 387, 388, 395, 396, 397, 398, 402, 404–405, 422, 430, 436, 443, 453, 471, 483, 487, 518–519 abandonment, 255, 312–314, 327, 329, 333–334, 458 casualty investigations, 266, 467, 477 grounding, 456, 458, 464, 482 quarantine, 193, 331 scuttling, 5, 255–256, 382–383, 441, 450, 452–453 ‘Aegean Sea’, 306, 307 ‘Aeolian Sky’, 272 ‘Amoco Cadiz’, 2, 40 ‘Andros Patria’, 272 ‘Attican Unity’, 419 ‘Baltic Carrier’, 457 ‘Bilboa’, 285, 450–451 ‘Bismihita La’, 255, 272 ‘Braer’, 31, 306, 307, 309, 433–434 ‘Carina’, 420 ‘Castor’, 5, 16, 21, 22, 36, 42, 122, 126, 215, 241, 272, 275, 284–285, 399, 331, 438, 459, 480, 505 ‘Christos Bitas’, 4–5, 16, 255, 272, 274, 441, 452–453 ‘Comet’, 185 ‘Creole’, 185

Index ‘Daishowa Maru’, 377 ‘Derbyshire’, 2 ‘Dole America’, 442, 448–449 ‘Dolly’, 315 ‘Eastern Mariner I’, 5 ‘Eastern Power’, 297 ‘Eastern Power’, 507–508 ‘Elizabeth’, 190 ‘Encomium’, 185 ‘Enterprise’, 185 ‘Erika’, 5, 11, 21, 25, 27, 36, 95, 122, 215, 241, 266, 268, 272, 299, 308–309, 331, 459, 465, 471, 480, 505, 519, 522 ‘Eurydice’, 383–384 ‘Ever Decent’, 3, 420, 444, 446–448 ‘Exxon Valdez’, 71, 489, 523 ‘Fu Shan Hai’, 458–459, 460, 465, 467 ‘Harvest Reaper 3’, 450 ‘Haven’, 306–307 ‘Hermosa’, 185 ‘Ikan Tanda’, 255 ‘Iron Baron’, 375, 382–383 ‘Khark 5’, 272, 275 ‘Kirki’, 375, 381 ‘Kitano’, 508 ‘Kowloon Bridge’, 6, 300 ‘Kurdistan’, 272, 275 ‘Long Lin’, 419 ‘Magnitude’, 3 ‘Magnitude’, 449 ‘Marion Grimes’, 184 ‘Milford Haven’, 3 ‘Mimosa’, 451 ‘Multitank Ascania’, 21 ‘Nestucca’, 523 ‘Norwegian Dream’, 420, 444, 446–448 ‘Oak Hill’, 356 ‘Oostzee’, 472 ‘Pallas’, 456, 471, 472, 480 ‘Piper Alpha’, 152–153 ‘Prestige’, 5, 11, 16, 25, 27, 95, 122, 215, 266, 268, 272, 275, 278, 279, 299, 331, 438, 460, 465, 480, 490–491, 502–503, 505, 519, 522 ‘Princess Eva’, 21 ‘Protokletas’, 272 ‘Rebecca’, 184 ‘Saint Blane’, 303 ‘Samia’, 420 ‘Sea Empress’, 291, 300, 308, 434–435 ‘Smirdan’, 272 ‘Tanio’, 306

551

‘Tasman Spirit’, 268, 289 ‘Toledo’, 218 ‘Torrey Canyon’, 14, 252, 272, 275, 431–433, 445, 489–490 ‘Trave Ore’, 507 ‘Tricolor’, 420 ‘Ventura’, 272 ‘Vicky’, 420 ‘Wester Till’, 451 ‘Ya Mawlaya’, 272 (see also, Collisions) Marine insurance, 109, 135, 138, 321–323, 335, 382, 384, 406, 421, 480, 484, 530 compulsory, 135, 305, 317, 329, 332, 339, 343 indemnity, 323, 340–346 pay to be paid rule, 341, 343 (see also, Cargo insurance; Collisions; Hull and machinery insurance; Liability; P&I insurance) Marine mammals, 70, 71, 83 Marine pollution, 16, 64, 321, 323, 348, 370, 378, 482 anti-fouling systems, 74 intentional discharges, 238–239, 388 invasive alien species, 64–65, 74 ocean dumping, 17, 254–258 oil spills, 2, 12, 15, 29, 30, 76–91, 116, 233, 239, 241, 253, 289, 300, 302, 306–311, 315–316, 323, 328, 331, 332, 339, 380–384, 387, 388, 433–435, 447, 449, 452, 457–458, 464–465, 468, 471, 489–491, 493–494, 502–503, 507–508, 521 vessel source, 12, 15, 23, 210, 250–254, 318, 332, 430, 517 (see also, Hazardous and noxious substances; IMO; ISM Code; Liability; Wreck) Marine protected areas, 13–14, 72–73, 115, 377, 440, 462, 469, 511, 513 historic sites, 72 Maritime administration, 17–18, 23–24, 30, 36, 41, 74, 93, 103–105, 115–116, 128, 129, 132, 138, 142–143, 206, 211, 214, 239, 240, 260, 265, 269, 282, 383, 386, 515 Maritime adventure, 2, 7, 20, 174–175, 224, 228, 246 Maritime assistance services (MAS), 28, 39, 41, 50, 51, 52, 53, 100, 133, 280, 459–460, 466–467, 475, 476, 506, 518, 521–522, 531

552

Index

Maritime labour, 1, 7, 20–21, 24–25, 170, 206, 228, 268, 286, 289, 333, 360, 362, 525 certiﬁcate of competency, 322 criminalisation, 11–13, 21, 528 master and crew competency, 2, 20 masters, 36, 20–21, 39–40, 45, 51–52, 101, 134, 172, 174, 182, 206, 210, 213, 225, 227, 280, 290, 301, 353, 369, 396, 398, 400, 404, 406, 411, 427, 448, 452, 458, 466, 528, 529 right to self—preservation, 9–10 (see also, Refuge, humanitarian assistance; Ship registration, ﬂag state) Maritime liens, 334 Maritime safety, 11, 12, 18–19, 115, 137, 193, 210, 212, 213, 265, 269, 328, 350, 389, 390, 437, 473, 474, 477, 490, 496, 501, 520, 525 port state control, 109, 322, 510 (see also, ISM Code; Refuge, humanitarian assistance) Maritime search and rescue, 18–19, 37, 38–39, 49–50, 100, 106, 113, 223, 235–236, 387, 418, 436, 448, 456, 465, 479, 516, 524–527, 529 (see also, Maritime safety; Refuge, humanitarian assistance) Maritime security, 172, 228, 240, 243, 379, 473, 495, 496, 498–499, 501, 506, 518, 520, 529 (see also, ISPS Code; Piracy; Terrorism) Maritime trade law, 4, 176, 179, 180, 199, 202, 224, 225, 227 MFN clause, 167, 176, 199, 203–204 reciprocal port access, 175, 176, 178, 179, 193, 228, 418 (see also, Refuge, bilateral treaty practice and maritime codes) Maritime transport, 62, 473, 506, 511, 520, 524–525 and integrated coastal and ocean management, 63–65 vessel trafﬁc systems, 97, 421, 427, 459–460, 466–467, 469, 477 (see also Ports; Ship registration; Vessel trafﬁc separation schemes) Media (see Communications management) Mediterranean Sea, 5, 40, 197, 272, 282, 459 Mexico, 185

Morocco, 180–181, 272, 282, 459 Mutual protection and indemnity associations (see Protection and indemnity insurance) Namibia, 255 Naval vessels (see Warships) Navigation, 2, 7, 12, 23, 38, 41, 85, 97, 115, 143, 171–172, 175, 192, 211, 234, 238, 239, 243, 251, 511, 515 freedom of, 176, 178, 179, 180, 234, 244, 247, 253, 264–265, 267, 417, 420, 424, 427 right of, 242, 267 (see also, Innocent passage; Maritime safety; Pilotage; Towage; Transit passage; Wreck removal) Negligence, 135, 274, 286–288, 290–291, 300–304, 334, 349, 356–357, 469 contributory negligence, 292–293, 311–312 due diligence, 38, 215, 226 standard of care, 311 Netherlands, 189, 201, 202, 204, 415, 419–420, 424, 451, 478 New Zealand, 219 Nicaragua, 199, 203 North Sea, 31, 40, 285, 415, 444, 450–451, 456, 464, 469, 480, 481 Northwest Passage (see Canada) Norway, 129–130, 205, 209, 279 Norwegian Marine Insurance Plan, 328, 342 Nuclear-powered ships, 211, 240 Ocean dumping (see Marine pollution) Oceans management, 519–520, 531 (see also, Coastal management) Offshore oil and gas, 2, 510, 520 Oil spill trajectory modelling, 78, 79–80, 85–86, 89–91, 116 Oman, 183, 203, 205 Ottoman Empire, 182 Panama, 24, 446, 448, 507 Perils of the sea, 7, 8 Peru, 200 Philippines, 185, 205, 241 Pilotage, 44, 101, 211, 213, 360, 421, 427, 434, 448, 457, 458, 467, 483 Piracy, 2, 8–9, 172 (see also, Maritime security) Place of safety (see Refuge; Salvage) Pleasure craft, 223, 405, 509

Index Polluter pays principle, 4, 13, 258, 358 Pollution (see Marine pollution) Port authorities, 17–18, 25–26, 41, 44, 62, 104, 105, 113, 120, 127–128, 129, 132, 135–136, 138, 142, 143, 206, 211, 214, 239, 242, 280, 282, 291, 292, 300, 305, 383, 386, 387, 389, 390, 398, 401, 421, 428, 436, 437, 442, 449, 478, 481–485, 514, 515, 530 Ports, 6–7, 29, 49, 63, 66, 76, 87–89, 91, 115, 119–121, 136–137, 191, 193, 203, 238, 261, 323, 324, 327, 330–331, 333, 345, 380–381, 384, 386, 389, 415–416, 420, 421, 436, 463, 464, 471, 478, 479, 480, 483, 485, 496, 498, 506, 514–515, 528 and salvage awards, 135, 296–297, 530 ECOPORT, 87, 140 environmental management, 18, 30, 139–143 (see also, Contingency planning; Port authorities; Salvage) Portugal, 178, 200 Precautionary principle, 229, 233, 246, 248–250, 255, 258, 512, 520 Protection and indemnity (P&I) insurance, 22, 30, 44, 135, 258, 322, 325–331, 333, 334, 340, 343, 346 International Group, 22, 305, 345 oil pollution liability, 326, 333, 338, 346 P&I clubs, 290, 322, 326, 328, 329, 333, 334, 338, 341, 342, 343, 345, 406, 419, 422, 468, 481, 484 (see also, Liability; Marine insurance) Protocol concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea, 98, 102, 198, 233n4 Public information (see Communications management) Receiver of Wreck, 281, 282, 289 Recreation, 2, 84, 387, 520 (see also, Pleasure craft) Refuge, and case law, 185–189, 217–219 and coastal state, 3, 4, 16–19, 25–26, 36, 37–38, 40–44, 45, 48–49, 52–53, 120, 128–129, 164, 195, 215, 219, 223, 224–225, 232, 234, 245–246, 250–252, 254, 259, 262–264, 272, 280–281, 284–285, 287, 289,

553 296–297, 319, 369–370, 480, 490, 506, 518–519, 526 and customs duties, 4, 179, 181, 182, 187, 189, 191, 199, 200, 203–204, 205, 206, 211–212, 228, 246 and privateers, 180, 183, 191–192 and shipwreck, 170, 174, 177, 182, 192, 200–201, 202, 204, 205, 206, 219, 223, 227 and slavery vessels, 184–185 and submarines, 197–198 bilateral treaty practice, 9, 43, 167–168, 175–185, 186, 199–207, 226–227, 237, 418, 522–524 codiﬁcation, 28, 37–38, 43–44, 137–139, 143, 164, 167–168, 195–196, 221–222, 228–229, 272, 418 compensation, 17–18, 30, 50, 100, 134, 135, 138, 141, 143, 177, 181, 224, 250, 345, 346, 370–371, 405–406, 443, 467–469, 478, 480, 484–485, 487, 501, 515, 520, 527, 530 decision-making process, 41, 55, 77–79, 93, 95, 98, 103–117, 129–134, 138, 143, 214–217, 215, 217, 226, 249, 259–260, 376–381, 383, 384–389, 390, 393–394, 397–402, 407–409, 420–428, 431, 439–443, 444, 453, 475, 476, 478, 479–487, 491–503, 506, 511–531 deﬁnition, 6–8, 38–39, 48–49, 50, 76, 90, 121–122, 213, 226, 348–349, 355, 370, 394–396, 438–439, 479 directing refuge, 405, 423, 443, 497 duty to protect ship and cargo, 42, 55, 107, 173–175, 177, 181, 203, 205, 214, 219, 223–224, 227, 271, 385, 396 expert analysis, 42, 53–55, 99, 109, 112, 441 ﬁnancial securities, 17–18, 22, 30, 44, 46, 54, 134, 138, 214, 305, 344–346, 370–371, 406, 409, 419, 420, 422, 424, 427, 428, 480–481, 501–502, 520, 530 historical development, 168–222 humanitarian assistance, 4, 9–11, 16, 37–39, 49–50, 107, 164, 168–170, 172–175, 177, 178, 179, 190, 194, 203, 204, 205, 214, 219, 220, 222–224, 226–228, 235–236, 238, 247, 271, 384, 387, 389, 391, 396, 397, 439, 466, 516, 526–527

554

Index

IMO Guidelines, 8–9, 28, 29, 35–60, 98–100, 107, 116, 120, 124, 125, 132, 134, 138, 164, 168, 215–216, 226–227, 229, 231, 236, 240, 245, 250, 268, 272, 311, 348, 438, 444, 459–460, 476, 481, 482, 490, 492, 496, 503, 506, 518, 521, 523, 526–531 involuntariness, 9, 246 maritime codes, 170–175 necessity, 8, 43, 186–189, 190, 191, 217 notiﬁcation and consent, 205, 207, 210, 211, 225, 263, 280 port dues, 182–183, 202, 206, 418 port of, 6–7, 30, 121, 123, 126, 127, 174–175, 190, 195, 219, 224, 226, 278, 284, 291, 294, 302–303, 304, 310, 312, 317, 318, 323, 326, 330–331, 333, 440, 471, 472, 479, 482, 485 pre-conditions, 44, 107, 108–112, 114, 224–225, 237, 280, 345, 397, 419, 422, 424, 427 pre-designated, 31, 41–42, 65–66, 77, 83, 91, 110, 123–124, 215–216, 227, 240, 246, 252, 259–260, 279, 375, 380–381, 385, 399, 424–427, 438, 440–441, 456, 459–467, 480, 500, 506, 530 public charges, 344 pursuit by enemies, 9, 169, 177–179, 191, 223 refuge custom, 3–4, 30, 43, 95, 117, 119–120, 128–129, 163–168, 176, 190, 195, 199, 218–219, 226, 234, 525–526 refusal of, 4–5, 22, 25–26, 30, 37, 42, 44, 104, 107, 114, 122, 123, 133, 164, 213–215, 218, 251, 255, 287, 289, 291, 311, 331, 346, 381, 382, 389, 401, 419, 424, 431, 448–499, 452, 507, 524, 526 repair and re-supply, 4, 177, 179, 182–183, 191, 193, 199, 202, 206–207, 220, 227, 420 Rescue Co-ordination Centres, 18, 50, 398, 400, 401, 421, 446, 529 right of entry to port, 18, 163–164, 175, 186, 195, 208–214, 224, 225, 237, 397, 420, 423–424, 472 right of refuge, 4, 8, 37, 43–44, 100, 138, 164, 194–195, 202, 203, 206, 214–215, 217, 224, 236, 278–279,

291–294, 346, 385, 397, 417, 420, 479, 490, 501, 516–518, 525–526 right of self—preservation, 4, 9–10, 222–224 ‘sacriﬁce sites’, 66, 86, 87 ‘ships in distress’, 3, 4, 8–9, 37, 38, 100, 106, 113, 120, 170, 171, 174, 179, 180, 184–185, 193, 194, 195, 197, 207, 208, 210–211, 212, 215, 220, 224, 225, 233, 235, 237, 243, 245, 300, 344, 348–349, 385, 397, 418, 424, 427, 438–439, 456, 465, 471, 479, 482, 518, 526 site selection criteria, 53–55, 66–73, 86–89, 127, 384, 408–411, 439–441, 444, 476, 481–482, 499–500, 520 ‘stress of weather’, 8, 169–170, 172, 174, 177, 178, 179, 186, 189, 190, 191, 199, 202, 209, 211, 217, 220, 223, 256, 387 (see also, Marine environmental protection) Rhodian sea law, 171, 207 Rio Declaration (see United Nations Conference on Environment and Development) Risk management: assessment, 30, 36, 37, 39, 42, 51–52, 58–60, 76, 93–95, 98–101, 114–117, 130, 143, 217, 250, 257, 346, 411, 439, 480, 482, 485, 518–520 methodology, 96–97, 102, 107, 114, 130 sensitivity mapping, 116, 519, 521 (see also, Contingency planning; Oil spill trajectory modelling) Roadsteads (see Ports) Romania, 200, 202, 204, 205, 206, 210n208 Rules of Oleron, 173–175 Russian Federation, 182, 188, 203, 210n208, 458, 467 (see also, USSR) Safe haven, 1, 6, 203, 380, 382, 441, 444, 465, 471, 514, 530 (see also, Refuge) Safety at sea (see Maritime safety) Safety management system (see ISM Code) Salvage, 1, 11, 16, 22–23, 30, 67, 101, 109, 134, 138, 173–175, 177, 195, 201, 205, 206, 211, 215, 218, 222–223, 224, 238, 240, 243, 245, 253, 258, 271–297,

Index 321, 324–325, 326, 327, 328, 330, 336, 380, 381, 382–383, 387, 388, 390, 400, 403, 404, 408, 418, 430, 436–437, 439, 441, 447, 452, 458, 463–466, 468, 485, 486, 498, 506, 521, 529 and IMO Guidelines, 36, 39–40, 44, 45, 51–52, 54, 100, 279–281 criminalisation of salvor, 21, 289–291, 527 liability issues, 128, 286–294, 300, 303–304 life salvage, 222 Lloyd’s Open Form, 273, 275, 281–282, 285, 287, 290, 295–296, 395, 436, 447 no-cure-no-pay principle, 273, 274, 278, 324 ‘place of safety’, 7–8, 295–296, 395 property deﬁnition, 274 special compensation clauses, 275, 282, 292, 293, 296, 324–325 success, 273–274 voluntariness, 274 (see also, General average; Ports, and salvage rewards; Pilotage; Towage; Wreck) Samoa, 210n208 Scheldt River, 416–417, 420, 422, 424, 427 SCOPIC clause (see Salvage, special compensation clauses) Scotland, 91, 307–309 Seabirds, 14, 27, 69–71, 83, 507, 511, 523 Seafarers (see Maritime labour) Seaworthiness, 2, 20, 53, 99, 406 Seychelles, 210n208 Shelter, 7 (see also, Refuge) Ship registration: beneﬁcial link, 263 ﬂag state, 23–25, 38, 109, 234, 240, 250, 252, 262–269, 318–319, 348, 421, 522 ﬂags of convenience, 319 genuine link, 265, 319 open registry, 263 Siam (see Thailand) Singapore, 381, 382 Slovenia, 198, 289 Small vessels (see ﬁshing vessels; Pleasure craft) Somalia, 210n208 South Africa, 255

555

Soviet Union (see USSR) Spain, 5, 18, 30, 100, 122–123, 126–127, 130, 131–132, 174, 178, 180, 185, 198, 200, 208, 214, 215, 216, 266, 272, 279, 289, 290, 459, 460, 491, 502, 505 Royal Decree 210/2004, 132, 134, 210n210, 344–345 St. Pierre and Miquelon (see France) St. Vincent and the Grenadines, 210 Straits, 455, 457, 467 international, 41, 225, 241, 244–246 (see also, Archipelagic waters, sea lanes; Transit passage; UNLOSC, straits) Sudan, 210n208 Sustainable development, 233, 512 Sweden, 63, 73, 177, 202, 209, 216, 456, 457, 458 Syria, 210n208 Taiwan, 216 Territorial sea, 164, 195, 220, 236, 241, 242, 244, 245, 253, 282, 284, 377, 379, 380, 385, 386, 395, 403, 405, 415, 418, 448, 455, 457, 473, 481, 483 Terrorism, 2, 370, 498–499 Thailand, 200, 201, 202 Togo, 203 Tourism, 2, 26, 42, 62, 64, 72, 84, 87, 115, 129, 137, 300, 387, 517, 520 Towage, 44, 77, 79, 84, 85, 89, 101, 124, 211, 213, 243, 280, 324, 326, 348, 355, 363, 370, 390, 403, 430, 434, 452, 456, 458–459, 463–466, 474, 486 Transit passage, 41, 195, 225, 234, 241, 244–246, 265 Treaties of friendship, commerce and navigation (see Maritime trade law) Treaty of Münster, 175–176, 416–417 Trinidad and Tobago, 210n208 Tunisia, 122, 181 Turkey, 201, 202 UNCED (see United Nations Conference on Environment and Development) UNCLOS (see United Nations Conferences on the Law of the Sea) UNLOSC (see United Nations Convention on the Law of the Sea) Underwater cultural heritage (see Wreck) Union of Soviet Socialist Republics (USSR), 203, 204, 206 (see also, Russian Federation) United Kingdom, 3, 4, 31, 41, 88, 174,

556

Index

177–185, 187, 196–197, 199–201, 205, 206, 216, 255, 275, 279, 288, 290–291, 325, 327, 342, 415, 429–453, 478 case law, 301–304, 307–309, 312–314, 355–356 HM Coastguard, 436, 446, 452 Lord Donaldson, 31, 297, 434–436, 476 Marine Accident Inspection Branch (MAIB), 448 Marine Insurance Act, 312–313 Marine Safety Act, 433, 437, 442, 449 Maritime and Coastguard Agency (MCA), 142, 151, 156, 157, 159, 428, 430–431, 435–437, 439, 440, 441, 447, 453 Merchant Shipping (Oil Pollution) Act, 309, 433, 437 National Contingency Plan, 434, 436, 441, 447, 453 SOSREP, 31, 124, 129, 133, 297, 435, 437, 439, 441–443, 447, 448, 449, 451, 476 Third Parties (Rights Against Insurers) Act, 341–342 Water Resources Act, 300 United Nations Conference on Environment and Development (UNCED), 63 Rio Declaration, 248–249 United Nations Conferences on the Law of the Sea, 43, 192, 228, 231, 232, 234 United Nations Convention on the Law of the Sea (UNLOSC), 9–10, 17, 56, 63, 65, 121, 234, 251–252, 266, 344, 378, 403 archipelagic waters, 41, 195, 209, 241–243, 244, 395 contiguous zone, 246 dispute settlement procedures, 267–268 environmental protection, 234, 239, 248, 250, 253–254, 277, 358, 397, 517 exclusive economic zone, 41 ﬂag state jurisdiction, 25, 264, 266 innocent passage, 195, 209, 234, 516 internal waters, 238, 241 sea lanes, 240, 242–243, 245 search and rescue, 235 shipping, 239 straits, 41, 244–246, 395 territorial sea, 41, 209, 395

trafﬁc separation schemes, 242–243, 245 transit passage, 195, 234, 241, 244–245 United States, 31, 116, 140, 178–188, 202–203, 204, 205–206, 208, 211, 216, 228, 304, 318, 327, 342, 489–503, 509–510, 513, 520, 522–523, 524, 525 Captain of the Port, 495, 496–497, 501 CERCLA, 496 Coastal Zone Management Act, 500 Endangered Species Act, 500 Environmental Protection Agency (EPA), 493–496 Federal Maritime Security Coordinator, 495, 498–499 Federal On-Scene Co-ordinator, 492, 495, 496–498, 500, 502 Limitation of Shipowners’ Liability Act, 336 Maritime Transportation Security Act, 498, 502 National Contingency Plan, 494–496 National ﬁsh and Wildlife Service, 498 National Response System, 490–503 NOAA, 498 Oil Pollution Act, 314, 490, 495, 496, 501, 502 Oil Spill Liability Trust Fund, 402 Ports and Waterways Safety Act, 496–497 Prince William Sound, 66–68 US Coast Guard, 130, 212, 493–496, 500, 501–503, 522 US Navy Supervisor of Salvage, 498 Venezuela, 185 Vessel trafﬁc separation schemes, 240, 242–243, 245, 446, 483 (see also, Maritime safety; Maritime transport, vessel trafﬁc systems) Vienna Convention on the Law of Treaties, 165 Wadden Sea, 252, 464 Warships, 2, 4, 167, 176–178, 180, 186, 190–191, 196–198, 203, 208–209, 221, 223, 225, 234, 395, 406, 422 Wetlands, 70, 260, 511 (see also, Mangroves and Coral) World Conservation Union (IUCN): World Charter for Nature, 260n159 World Maritime University (WMU), 29, 112–113, 116

Index World Summit on Sustainable Development (WSSD): Plan of Implementation, 73n23 Wreck, 4, 16, 22, 30, 79, 200, 281–284, 315–316, 319, 321, 333, 354, 387, 522 ‘registered owner’, 328

557 removal, 258–259, 313–314, 327–329, 337, 345, 481 Draft Convention, 258–259, 281–284, 316–317, 328, 329 (see also, Receiver of Wreck; Salvage)

Yugoslavia, 204, 209n204

Publications on Ocean Development 1.

R.P. Anand: Legal Regime of the Sea-Bed and the Developing Countries. 1976 ISBN 90-286-0616-5

2.

N. Papadakis: The International Legal Regime of Artificial Islands. 1977 ISBN 90-286-0127-9

3.

S. Oda: The Law of the Sea in Our Time. Volume I: New Developments, 1966-1975. 1977 ISBN 90-286-0277-1

4.

S. Oda: The Law of the Sea in Our Time. Volume II: The UN Seabed Committee, 19681973. 1977 ISBN 90-286-0287-9

5.

C.O. Okidi: Regional Control of Ocean Pollution. Legal and Institutional Problems and Prospects. 1978 ISBN 90-286-0367-0

6.

N.S. Rembe: Africa and the International Law of the Sea. A Study of the Contribution of the African States to the 3rd UN Conference on the Law of the Sea. 1980 ISBN 90-286-0639-4

7.

R.P. Anand: Origin and Development of the Law of the Sea. History of International Law Revisited. 1983 ISBN 90-247-2617-4

8.

A.M. Post: Deepsea Mining and the Law of the Sea. 1983

ISBN 90-247-3049-X

9.

S.P. Jagota: Maritime Boundary. 1985

ISBN 90-247-3133-X

10. A.O. Adede: The System for Settlement of Disputes under the UN Convention on the Law of the Sea. A Drafting History and a Commentary. 1987 ISBN 90-247-3324-3 11. M. Dahmani: The Fisheries Regime of the Exclusive Economic Zone. 1987 ISBN 90-247-3374-X 12. S. Oda: International Control of Sea Resources. Reprint with a New Introduction. 1989 ISBN 90-247-3800-8 13. D.G. Dallmeyer and L. DeVorsey, Jr. (eds.): Rights to Oceanic Resources. Deciding and Drawing Maritime Boundaries. 1989 ISBN 0-7923-0019-X 14. B. Kwiatkowska: The 200 Mile Exclusive Economic Zone in the New Law of the Sea. 1989 ISBN 0-7923-0074-2 15. H.W. Jayewardene: The Regime of Islands in International Law. 1990 ISBN 0-7923-0130-7 16. D.M. Johnston and M.J. Valencia: Pacific Ocean Boundary Problems. Status and Solutions. 1990 ISBN 0-7923-0862-X 17. J.A. de Yturriaga: Straits Used for International Navigation. A Spanish Perspective. 1991 ISBN 0-7923-1141-8 18. C.C. Joyner: Antarctica and the Law of the Sea. 1992

ISBN 0-7923-1823-4

Publications on Ocean Development 19. D. Pharand and U. Leanza (eds.): The Continental Shelf and the Exclusive Economic Zone: Delimitation and Legal Regime/Le Plateau continental et la Zone économique exclusive: Délimitation et régime juridique. 1993 ISBN 0-7923-2056-5 20. F. Laursen: Small Powers at Sea. Scandinavia and the New International Marine Order. 1993 ISBN 0-7923-2341-6 21. J. Crawford and D.R. Rothwell (eds.): The Law of the Sea in the Asian Pacific Region. 1995 ISBN 0-7923-2742-X 22. M. Munavvar: Ocean States. Archipelagic Regimes in the Law of the Sea. 1995 ISBN 0-7923-2882-5 23. A. Strati: The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea. 1995 ISBN 0-7923-3052-8 24. A.G. Oude Elferink: The Law of Maritime Boundary Delimitation. A Case Study of the Russian Federation. 1994 ISBN 0-7923-3082-X 25. Y. Li: Transfer of Technology for Deep Sea-Bed Mining. The 1982 Law of the Sea Convention and Beyond. 1994 ISBN 0-7923-3212-1 26. T.O. Akintoba: African States and Contemporary International Law. A Case Study of the 1982 Law of the Sea Convention and the Exclusive Economic Zone. 1996. ISBN 90-411-0144-6 27. J.A. Roach and R.W. Smith: United States Responses to Excessive Maritime Claims. Second Edition. 1996 ISBN 90-411-0225-6 28. T. Treves (ed.): The Law of the Sea. The European Union and its Member States. 1997 ISBN 90-411-0326-0 29. A. Razavi: Continental Shelf Delimitation and Related Maritime Issues in the Persian Gulf. 1997 ISBN 90-411-0333-3 30. J.A. de Yturriaga: The International Regime of Fisheries. From UNCLOS 1982 to the Presential Sea. 1997 ISBN 90-411-0365-1 31. M.J. Valencia, J.M. Van Dyke and N.A. Ludwig: Sharing the Resources of the South China Sea. 1997 ISBN 90-411-0411-9 32. E.C. Farrell: The Socialist Republic of Vietnam and the Law of the Sea. An Analysis of Vietnamese Behavior within the Emerging International Oceans Regime. 1997 ISBN 90-411-0473-9 33. P.B. Payoyo: Cries of the Sea. World Inequality, Sustainable Development and the Common Heritage of Humanity. 1997 ISBN 90-411-0504-2 34. H.N. Scheiber (ed.): Law of the Sea. The Common Heritage and Emerging Challenges. 2000 ISBN 90-411-1401-7 35. D.R. Rothwell and S. Bateman (eds.): Navigational Rights and Freedoms and the New Law of the Sea. 2000 ISBN 90-411-1499-8

Publications on Ocean Development 36. M.J. Valencia (ed.): Maritime Regime Building. Lessons Learned and their Relevance for Northeast Asia. 2001 ISBN 90-411-1580-3 37. A.G. Oude Elferink and D.R. Rothwell (eds.): The Law of the Sea and Polar Maritime Delimitation and Jurisdiction. 2001 ISBN 90-411-1648-6 38. Robert Kolb, Case Law on Equitable Maritime Delimitation/Jurisprudence sur les délimitations maritimes selon l’équité: Digest and Commentaries/Répertoire et commentaires. 2002 ISBN 90-411-1976-0 39. Simon Marr, The Precautionary Principle in the Law of the Sea: Modern Decision Making in International Law. 2002 ISBN 90-411-2015-7 40. Sun Pyo Kim: Maritime Delimitation and Interim Arrangements in North East Asia. 2003 ISBN 90-04-13669-X 41. Roberta Garabello and Tullio Scovazzi (eds.): The Protection of the Underwater Cultural Heritage. Before and After the 2001 UNESCO Convention. 2003 ISBN 90-411-2203-6 42. Nuno Marques Antunes: Towards the Conceptualisation of Maritime Delimitation. Legal and Technical Aspects of a Political Process. 2003 ISBN 90-04-13617-7 43. Geir Hønneland: Russian Fisheries Management. The Precautionary Approach in Theory and Practice. 2004 ISBN 90-04-13618-5 44. Alex G. Oude Elferink and Donald R. Rothwell (eds.): Oceans Management in the 21st Century. 2004 ISBN 90-04-13852-8 45. Budislav Vukas: The Law of the Sea. 2004

ISBN 90-04-13863-3

46. Rosemary G. Rayfuse: Non-Flag State Enforcement in High Seas Fisheries. 2004 ISBN 90-04-13889-7 47. David. D. Caron and Harry N. Scheiber (eds.): Bringing New Law to Ocean Waters. 2004 ISBN 90-04-14088-3 48. Zou Keyuan: China’s Marine Legal System and the Law of the Sea. 2005 ISBN 90-04-14423-4 49. Florian H.Th. Wegelein: Marine Scientific Research. The Operation and Status of Research Vessels an Other Platforms in International Law. 2005 ISBN 90-04-14521-4 50. Guifang Xue: China and International Fisheries Law and Policy. 2005 ISBN 90-04-14814-0 51. Aldo Chircop and Olof Linden (eds): Places of Refuge for Ships. Emerging Environmental Concerns of a Maritime Custom. 2006 ISBN 90-04-14952-X