A few situations involving port of refuge:
Erika was broken in two in a severe storm in the Bay of Biscay. Erika was a 37,283t dwt, 1975 built tanker and carried some 31,000t of oil as cargo, of which, about 20,000t of oil was spilled off. On afternoon of the 11th December, 1999 the crew for the first time was alerted by a starboard list. In about one and a half hour a distress alert was transmitted and the Master decided to head towards the nearest port La Rochelle for refuge. At about 17:00 course was altered and vessel headed for Donges. After about two hours of the alteration French Authorities were informed of this plan. Erika was refused entry because she was polluting.
In the early morning next day, side shell plating was seen tearing off. Soon the distress alert transmitted again. In a short while, French naval helicopters arrived and started the rescue operation. Within about 10 minutes of arrival the vessel broke in two. This occurred in a position 60 miles from the coast of Brittany. The bow sank on 12th December and the stern on the following day.
Almost, a year after the Erika disaster, Castor met with a similar fate. Castor a 31,068t dwt, was built in 1977. The product tanker Castor was a strong ship. During a voyage from Constantza to Lagos, loaded with 29,500 tonnes of unleaded gasoline, encountered very rough weather. On the 31st December a 20 m crack developed across almost the entire breadth of the main deck, in the region of the number 4 cargo tanks. The tanker was in a critical condition. The main fear was that the grinding together of the steel plates could cause explosion.
Castor’s position at that time was 25 miles North of Mellila on the Moroccan coast, which could be an ideal place of refuge. The Moroccan authorities refused the request though. The tanker was ordered to be off coast by at least 40 miles. On 3rd January, Lloyd’s Open Form was signed with a salvage company. A very large salvage tug Nikolay Chiker arrived at the site of casualty, the very same evening. On 5th January, two inspectors from the Spanish Coast Guard stayed onboard for one hour and mostly checked ship’s documents and structural record. The crew followed a suggestion to abandon the vessel as it was considered too dangerous to remain onboard. Now the tow could not get within 45 miles of Gibralter. The ship could have made it to a sheltered spot around the French coast and remain intact. On 21st January, the entire 6,100 cubic metres of gasoline in the damaged number 4 tanks was transferred to another tanker. Spanish port of Cartagena was about 35 miles off.
Between Malta and Tunisia, a violent storm of force over 10/12 Beaufort was met. Tunisian authorities refused to allow the Nikolay Chiker and her tow into the Gulf of Hammamet. However, instead they allowed the casualty temporary shelters in a quieter spot near the port of Kelibia. Finally, a small stretch of better weather allowed salvors to connect the second lightering tanker, to the Castor. On 8th February, the remaining cargo was transferred. Empty Castor was towed safely to Piraeus and delivered back to her owners.
In less than two years after the castor incident, PRESTIGE created waves. The M/T Prestige, was a 1976 built 81,564t dwt pre-MARPOL single hull crude oil tanker. On Wednesday, 13th November 2002, at 1510 h she developed a heavy starboard side list in heavy seas. The ship was granted port of refuge earlier, was denied later by Spanish parliament. LOF contract was signed between owners and salvors. 24 crew members were airlifted to safety by a Spanish helicopter. The salvage team at La Caruna was allowed to board the vessel only after they had agreed to sign an undertaking that the ship would be towed 200 miles offshore. The Master, Chief Engineer and Chief Officer remained onboard.
A crack had developed on the side shell of Prestige on the 14th November 2002 due to very severe weather off Spain. On Tuesday, 19th November 2002, the vessel broke in two and later in the afternoon she sank about 140 miles off the coast of Spain, 6 days after the original casualty. IMO took cognizance of the sinking of the ship, particularly as the place of refuge was refused. IMO decided to formulate ‘Guidelines on Places of Refuge for Ships in Need of Assistance’. Fortunately, no lives were lost. The Master was the last person to be rescued by a helicopter and was imprisoned along with the DPA in Spanish Jails. The cause of disaster was a crack and was allowed to extend so that the tanker broke in two.
Legal perspective of a State
UNCLOS, Article 2, which recognizes the right of States to regulate entry into their ports, establishes the sovereignty of a coastal state over its land territory, internal waters, archipelagic waters and the territorial sea. There are several international instruments such as various UNCLOS Articles; Salvage Convention; and Facilitation Convention, etc., which give rights to coastal state to take action and to protect its coastline from marine pollution.
An interesting point to note in respect of force majeure and distress is that a ship can stop and anchor while navigating in the territorial sea, straits in archipelagic waters. Apparently in the similar situations to enter a port or internal waters of another State becomes difficult.
Development of legal Issues “Subsequent to the Erika disaster, the EU implemented a series of recommendations in March and December, 2000. These packages became known as ‘ERIKA one’ and ‘two’ respectively. These recommendations ban ships that have a bad maintenance record from entering into EU waters. Thus, EUROPA 2000 Measures ban single hull tankers as from 2015, a ban similar to (OPA-90) which was put, post Exon Valdez accident in 1989.
Article 17 of ‘Erika Two’ states that member states should ensure ports are available on their territory, which are capable of accommodating ships in distress; this however is only a guideline. The European Union’s Erika III package includes compulsory insurance by virtue of directive, implemented by Feb, 2012 states that the absence of insurance certificate shall not itself lead to the refusal of port of refuge. (IMO) and the European Union (EU) together addressed the issue of port-of-refuge as a matter of urgency. Help should be available with the nearest port.
Post Prestige, in November 2003, the IMO Assembly adopted two resolutions addressing the issue of places of refuge for ships in need of assistance.
1. Resolution A.949(23). Guidelines on places of refuge for ships in need of assistance 2. A.950(23). Maritime Assistance Services (MAS).
The resolution A.949 (23), ‘Guidelines on Places of Refuge for Ships in Need of Assistance’, was adopted on 5th December, 2003. Following are its salient features:
It takes into account the obligation and procedures for Master to come to the assistance of persons in distress at sea under SOLAS regulation V/33 as amended. It also takes in to account the international Convention on Maritime Search and Rescue 1979 as amended, which does not address the issue of ships in need of assistance. Ships at sea may find themselves in need of assistance relating to safety of life and protection of marine environment. Resolution provides guidance to Masters and/ or Salvors of ships in need of assistance. It recognizes the need to balance both the prerogative of the ship in need of assistance to seek a place of refuge and that of the coastal state to protect its coastline.
A responsibility is placed on the coastal states who are to determine places of refuge for ships in need of assistance and respond effectively in order to enhance Maritime Safety and Protection of Marine Environment. The decisions were taken by the Maritime Safety Committee (MSC), Marine Environment Protection Committee (MEPC), Legal Committee and the subcommittee on Safety of Navigation in their respective sessions.
The concept of Port of Refuge is actually complex
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. 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.
1. Should the ship be brought into shelter near the coast? or
2. Should the ship be brought into a port? or, conversely,
3. Should it be taken out to sea?
When damage occurs, best way to prevent deterioration would be to lighten its cargo, bunker and repair the damage and best place to do this is the port of refuge as it is rarely possible to repair the ship in open sea conditions. Port / coast however, may be endangered both economically and environmentally and local authority/ population may object due to potential of environmental damage. In many instances when the damaged ship is forced to remain at the mercy of the open sea elements, the risk of ship damage / environmental damage would be substantial. Granting of port of refuge needs political decision taken with due consideration of the pros and cons of ship / environment damage.
Port of refuge can definitely be great in limiting the extent of environmental / ship damage. Consideration must be given to the possibility of taking an affected ship to a port or terminal where repairs can be done relatively easily. Things like the properly in question, technical case of the damaged ship, etc would help in negotiating the place of refuge.
Purpose of Guideline:
The purpose is to provide IMO members, Governments, Ship Masters, Companies (as per ISM code) and Salvors with guided framework to respond effectively so that all actions taken are complimentary to each other. These guidelines do no address the issue of operation for rescue of persons at sea as two situations arise:
1. The ship according to the Master is in need of assistance but not in distress situation like about to sink, fire developing etc, that requires evacuation onboard.
2. Those onboard are already rescued with the possible exception of those who stayed on board or have been placed in an attempt to deal with the situation on the ship. If the evolving situation is such that persons onboard find themselves in distress, SAR convention has priority over the guidelines.
In any case MRCC should be informed about any situation, which may develop into a SAR incident (International Convention on Maritime Rescue). Safety of persons is paramount particularly in two respects:
1. If the ship poses a risk due explosion or serious pollution damage to the life of persons in the vicinity i.e. crew of salved ships, port workers or inhabitants of coastal areas.
2. If the persons are voluntarily staying onboard e.g. Master, fire-fighters, salvage or towage company to overcome the difficulties experienced by the ship.
These guidelines do not address the liability and compensation for damage resulting from a decision to grant or deny a ship the port of refuge.
Section 2 of the resolution is guidelines for action required of Masters and or Salvors in need of places of refuge. Section 3 is guidelines for actions expected of coastal states.
Section 2: Guidelines for action required of Masters and/or salvors of ships in need of a place of refuge:
Master and/or Salvors must state: the exact reasons for the ship’s need of assistance; identification of hazards; and assessment of associated risks. They should estimate the consequences of potential casualty under following conditions:
a) Ship remains in same position.
b) Continues on its voyage.
c) Reaches a place of refuge. Or
d) Ship is taken out to sea.
Master should identify the assistance they require from the coastal state to overcome inherent danger. He should contact the coastal state with above information through coastal MAS. The Master / Salvor should notify the MAS of action included, to be taken and within what time frame MAS should notify the Master of the facilities available for assistance and admittance of the vessel to a place of refuge. Subject, where necessary to the coastal state’s prior consent, the Master and the shipping company should take necessary response action as signing a salvage or towage agreement or any other services to deal with the situation. The Master should comply with the practical requirements of the coastal state’s ‘decision making process’. Master should confirm with ISM code procedures/ contingency plans and Resolution A.852 (20) as per the guidelines provided in SMS for shipboard contingencies.
Section 3: Guidelines for actions expected of coastal states:
Coastal states may require the Master to take appropriate action within a prescribed time limit to halt the threat of danger. In case of failure or urgency, the coastal state can exercise its authority in taking responsive action (e.g. asking other authorities for help etc.). All coastal state need to establish MAS and procedures to address these issues.
Coastal state must establish procedures to receive and act on requests for assistance with a view to authorize suitable place of refuge. The maritime 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. The analysis should be in the form of a contingency plan. The information must be shared by establishing communications and alert procedures. There should be modalities for a joint assessment of situations. The analysis should include the following points;
- Seaworthiness of the ship, buoyancy, stability, availability of means of propulsion, power generation, docking facilities, etc.
- Nature and condition of cargo, stores, bunkers, in particular hazardous cargo.
- Distance and estimated transit time to a place of refuge.
- Whether the Master is onboard.
- Number of other crew and/ or Salvors and other persons on board and an assessment of human factors including fatigue.
- The legal authorities of the country concerned to require action of the ship in need is assistance.
- Whether the ship insured or not insured.
- If insured, the identification of the insurance company and limits of liabilities available.
- Agreement by the Master and company of the ship to the proposals of the coastal state / Salvors to proceed or to be brought to a place of refuge.
- Provisions of financial security required.
- Commercial salvage contracts already concluded by the Master or the company of the ship.
- Information with intention of the Master and / or Salvors.
- Designation of a representative of the company at the coastal state concerned.
- Risk evaluation factors.
- Any measures already taken.
Inspection team of coastal state (designated) is to board the ship to evaluate and assess. The analysis should include comparison between risks involved, if the ship remains at sea and risks that it would pose to the place of refuge and its environment. The expert analysis should cover:
- Safeguarding of human life at sea.
- Safety of persons at the place of refuge and its industrial and urban environment (risk of fire, explosion, toxic risk).
- Risk of pollution.
- If the place of refuge is a port, risk of disruption to the port’s operation (channels, docks, equipments, other installations).
- Evaluation of the consequences if a request for the place of refuge is refused, including the possible effect on neighbouring states.
- Due regard in the analysis to be taken for preservation of hull, machinery and cargo of the ship in need of assistance.
All the other authorities must be informed.
Decision making process for the use of place of refuge:
A Coastal state has no obligation to grant a place of refuge, but to weigh all factors and risks in a balanced manner and give shelter whenever possible. A Coastal state has to decide to allow or refuse admittance. If the place of refuge is a port, the guarantee of payment of all expenses incurred should be given by the owner.
A second resolution, A.950 (23) Maritime Assistance Services (MAS), was adopted on 5th December 2003, whereby, inter alia, it invited Governments of coastal States that have established an MAS for the purposes as described in the resolution, to forward to the Organization the details (i.e. call numbers, call signs, etc.) of their MAS, to enable the Organization to circulate such particulars, so that shipmasters and other persons or organizations concerned can make contact as necessary. Thus, idea was receive the various reports, consultations, etc, serving as the point of contact if the ship’s situation is not a distress situation but nevertheless requires exchanges of information between the ship and the coastal State. Purpose is also for serving as the point of contact between those involved in a marine salvage operation undertaken by private facilities if the coastal State considers that it should monitor all phases of the operation.
MAS or Maritime Assistance Service as defined in Resolution A.950 (23) is responsible for receiving reports in the event of incidents and serving as the point of contact between the ship Master and the authorities of the coastal state in the event of an incident.
There are opinions, against and in favour, which is an obvious thing for such a big issue, involving the environment. Let us look t some of them:
- Politicians, executives etc. do not want to take responsibility. Also, the cost of ‘clean-up operations’ can be extremely high. The wildlife and flora that are damaged or destroyed may not return for many years
- Ship sinking in the ocean is preferred to a disabled ship in own port. The safety of residents that live near a port may be in danger from leakage of dangerous substances.
- Many ports are actually not capable.
- Although LLMC, CLC, FUND, HNS and Bunker Convention may be in place, they do not cover all situations.
- It would be much safer to allow a damaged ship into a port, where pollution can be contained. Overall pollution will be less.
- A rescue operation can be undertaken much more effectively in coastal waters than on the high seas. Better potential of safety of life.
Analyzing the past experience:
- In case of Erika the damage could have been prevented if the ships were allowed entry.
- The European Sea Ports Organisation (ESPO) and the IMO claim that a port is not necessarily the best place for a distressed ship.
- More than the port, what is needed is an area of sheltered water, where operations can be carried out. A place-of-refuge rather than a port-of-refuge is more appropriate term to use.
- INTERTANKO claims that states should have an obligation to provide prompt assistance, to vehicles in distress, of their shores.
- ESPO believes that ports should be able to refuse access to a ship in distress if the accommodation of this vessel would endanger the safety of the port, environment and economy.
Ports however, surely should be granted prompt compensation for accommodating a ship in distress.
It would be best if, taking the IMO Guidelines into account, coastal States designated places of refuge for use when confronted with say laden tankers, etc needing assistance off their coasts and, accordingly, drew up relevant emergency plans, instead of being unprepared to face such situations and, because of that, taking wrong and hasty decision, acting under pressure from civil organizations.
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