Places of Refuge for Ships:

1
Places of Refuge for Ships

• An Emerging International Framework for Best
  Practices Decision-Making
• Aldo Chircop
• Marine Environmental Law Institute
• Dalhousie Law School
• Halifax, NS, Canada

2
The modern issues

• Humanitarian considerations
• - Humanitarian considerations for the crew
• - Humanitarian consideration for persons other
  than the master and crew
• Property considerations
• - Ship safety
• - Cargo safety
• Coastal state considerations
• - Coordinated v. uncoordinated decision-making
  levels
• - Duty to protect the marine environment
• - Right of protection (environmental and
  economic security)
• - Liabilities, guarantees and compensation
• - Power to intervene
• - Dumping concerns
• - Transboundary movement of hazardous wastes
• - Treatment of seafarers
• - The media, public information and crisis
  management
• NIMBY not-in-my-backyard syndrome

3
The international framework

• The old decision-making framework
• An ancient maritime humanitarian practice
  observed in most parts of the world as
  international customary law, and serving the
  maritime community for centuries.
• Sources of the custom
• Direct recognition national state practice in
  the form of diplomatic correspondence,
  legislation, policies, manuals and decision
  precedents.
• Direct recognition numerous 17th-20th century
  bilateral treaties on peace, friendship, commerce
  and navigation stipulating a right and a duty to
  grant refuge and assist/protect ships/crews.
• Direct and indirect recognition some
  multilateral conventions (e.g., UN Convention on
  the Law of the Sea, 1982).

4
The threshold of the custom

• It must be an urgent distress  it must be
  something of grave necessity  such as is spoken
  of in our books, where 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 Then again,
  where the party justifies the act upon the plea
  of distress, 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 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.
• Per Sir William Scott (Lord Stowell) The Eleanor,
  (1809) Edw. 135

5
Consequences of the custom

• Humanitarian dimension (saving of human lives).
• Property matters (protection of property, even
  when shipwrecked).
• Assistance provided (e.g., provisioning).
• Privileges and immunities associated with refuge
  (e.g., exemptions from customs).

6
The old framework continued

• What was missing in the old decision-making
  framework?
• The custom remained largely uncodified in the
  international law of the sea and maritime law,
  leaving room for conflicting interpretation when
  juxtaposed to the protective principle (i.e.,
  self defense).
• Generally accepted (uniform) best practices,
  rationalized on the basis of a risk-assessment-bas
  ed approach, to guide the coastal authority in
  reaching a reasonable and defensible decision to
  grant or refuse refuge to ships in need of
  assistance, in particular temporary shelter (safe
  place).
• An insurance framework sufficiently wide in scope
  and depth of coverage (indemnity) to cover all
  possible risks/perils faced by the coastal
  state/port authorities providing refuge.

7
International framework continued

• The new framework
• Global management guidelines
• IMO Guidelines on Places of Refuge for Ships in
  Need of AssistanceGuidelines on Places of Refuge
  for Ships in Need of Assistance IMO Assembly
  Resolution A.949(23), 5 December 2003, IMO Doc. A
  23/Res.949, 5 March 2004.
• IMO Maritime Assistance Services resolution IMO
  Assembly Resolution A.950, Adopted on 5 December
  2003, IMO Doc. A 23/Res.950, 26 February 2004.

8
The new framework continued

• Regional regulatory requirements, affecting some
  of the seas surrounding Europe)
• 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).
• 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, ltwww.unepmap.gr/Archivio/All_Lang
  uages/WebDocs/BCProtocols/Emergency02_eng.pdf gt,
  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),
  ltwww.helcom.fi/stc/files/Convention/Conv0704.pdfgt,
  1 August 2005, 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, ltwww.bonnagreement.org/e
  ng/html/welcome.htmlgt, 1 August 2005.

9
The larger global and regional marine and
environmental law context

• International law of the sea
• United Nations Convention on the Law of the Sea
  (UNCLOS)
• International Convention relating to Intervention
  on the High Seas in Cases of Oil Pollution
  Casualties (the Intervention Convention), 1969
• Protocol relating to Intervention on the High
  Seas in Cases of Pollution by substances other
  than Oil, 1973
• Convention on the Prevention of Marine Pollution
  by Dumping of Wastes and Other Matter, 1972
• Regional instruments (e.g., concerning dumping in
  the Mediterranean, North Sea, Baltic).

10
Larger global context continued

• International maritime law
• General regulatory instruments
• International Convention for the Safety of Life
  at Sea, 1974 (SOLAS 1974), as amended
• 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
• Liability instruments
• 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

11
Larger global context continued

• International environmental law, e.g.
• Convention on Wetlands of International
  Importance Especially as Waterfowl Habitat, 1971.
  
• Convention on Biological Diversity, 1992
• Basel Convention on the Control of Transboundary
  Movements of Hazardous Wastes and their Disposal,
  1989.
• Regional instruments.

12
The Heart of the New Framework IMO Guidelines,
2003

• Good practices for
• Masters and salvors
• Coastal state authorities.
• Designed to
• Move sufficient information in a timely manner to
  enable a rationalized decision to grant refuge or
  otherwise.

13
For masters and salvors

• Situation appraisal
• Identification of hazards and risks
• Identification of required actions
• Communication with the coastal state and
  communications generally
• Response actions
• Reporting procedures

14
Coastal states

• Assessment of places of refuge
• Event-specific assessment
• Expert analysis
• Decision-making

15
Risk assessment framework

• Places of refuge
• Ports and harbours
• Anchorages
• Other sheltered water
• Area-specific response capabilities

16
Risk assessment framework

• Threatened persons/areas
• - crew safety
• - safety of response personnel
• - public safety
• - marine pollution threat
• - protected/sensitive areas
• - resources
• - economic activities
• - amenities
• Factors enhancing or mitigating the risk
• - Geography
• - Oceanography
• - Weather
• - Traffic
• - Etc.
• Standing and response capability
• Downstream risks

17
MAS Resolution Requirements

• Coastal states recommended to establish MAS for
• Receiving reports, consultations, notifications
  required by listed IMO instruments
• Monitor a ships situation if a report discloses
  an incident that may cause the ship to be in need
  of assistance
• Serving as a point of contact between the master
  and coastal state
• Serving as a point of contact between the salvor
  and coastal state.

18
Liability and insurance

• Shipowning interests continue to be covered by
  general underwriting (e.g., 2003 Institute Hull
  Clauses) and P I coverage.
• Compensation for damage suffered by third parties
  (including ports) covered on the basis of strict
  but limited liability by CLC, IOPCF, HNS, Bunkers
  (last two not yet in force).
• PI Standard Form Letter of Guarantee (designed
  to address concerns of ports) 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.

19
Letter of guarantee conditions

• In consideration of
• 1 your agreeing to the entry into port of other
  place of refuge of the (name of ship)
• and
• 2 your agreeing not to arrest or detain the (name
  of ship) or any other ship or property in the
  same or associated ownership, management,
  possession or control
• and upon condition that
• 1 such refuge is given and
• 2 the (name of ship) or any other ship or
  property in the same or associated
• ownership, management, possession or control is
  not arrested or detained by you

20
Letter of guarantee perils

• (i) the removal, destruction or marking of the
  wreck of the name of vessel and/or
• (ii) any pollution clean-up or pollution
  prevention expenses (individually and
  collectively the Claims),
• To a limit of 10 million (unless the amount is
  adjusted up or down when the letter is issued).

21
Conclusions Future directions

• Future of the IMO Guidelines growing acceptance
  as an international standard, possibly evidencing
  an emerging duty to decide diligently.
• National policy and management responses
• Designation of publicly announced places
• Designation of unannounced places
• Designation of a policy for case-by-case response
• Potential legal development in response to lack
  of codification
• Amendment of existing instruments (e.g.,
  International Salvage Convention, 1989?
• Or a new convention? (IMO Legal Committee not yet
  inclined towards this).
• Need to bring conventions not yet in force, into
  force and expansion of membership.
• Another relevant initiative on the horizon IMO
  Draft Convention on Wreck Removal