Images of oiled seabirds with a stricken tanker in the background are, thankfully, rarer than the news media might have the general public believe. Yet when there is an incident, coastal States need to be prepared. The issue of "places of refuge" is one aspect of contingency planning in the consideration of which the rights and interests of coastal States as well as the need to render assistance to vessels that are damaged or disabled or otherwise in distress at sea ought to be taken into account.
In November 2003, the IMO Asembly adopted two resolutions addressing the issue of places of refuge for ships in distress - an important step in assisting those involved in incidents that may lead to the need for a place of refuge to make the right decisions at the right time.
Resolution A.949(23) Guidelines on places of refuge for ships in need of assistance are intended for use when a ship is in need of assistance but the safety of life is not involved. Where the safety of life is involved, the provisions of the SAR Convention should continue to be followed.
The guidelines recognize that, when a ship has suffered an incident, the best way of preventing damage or pollution from its progressive deterioration is to transfer its cargo and bunkers, and to repair the casualty. Such an operation is best carried out in a place of refuge. 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.
Therefore, granting access to a place of refuge could involve a political decision which can only be taken on a case-by-case basis. In so doing, consideration would need to be given to balancing the interests of the affected ship with those of the environment.
A second resolution, A.950(23) Maritime Assistance Services (MAS), recommends that all coastal States should establish a maritime assistance service (MAS). The principal purposes would be to receive the various reports, consultations and notifications required in a number of IMO instruments; monitoring a ship's situation if such a report indicates that an incident may give rise to a situation whereby the ship may be in need of assistance; 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, and 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.
The need to review the issues surrounding the need for places of refuge was included in a list of measures aimed at enhancing safety and minimizing the risk of oil pollution, drawn up in December 2000 in response to the Erika incident of December 1999.
Further urgency to the work came in the aftermath of the incident involving the fully laden tanker Castor which, in December 2000, developed a structural problem in the Mediterranean Sea. In early 2001, IMO Secretary-General Mr. William O'Neil suggested that the time had come for the Organization to undertake, as a matter of priority, a global consideration of the problem of places of refuge for disabled vessels and adopt any measures required to ensure that, in the interests of safety of life at sea and environmental protection, coastal States reviewed their contingency arrangements so that such ships are provided with assistance and facilities as might be required in the circumstances.
The November 2002 sinking of the Prestige further highlighted the issue.
Background on places of refuge
The notion of providing refuge for ships in distress was raised at IMO during the late 1980s, when the Legal Committee was considering the draft provisions of the International Convention on Salvage (eventually adopted in 1989). At the time, it was suggested that there should be an obligation on States to admit vessels in distress into their ports. Although this was endorsed by some delegations, others expressed doubt on the desirability of including such a "public law" rule in a private law convention. It was also pointed out that the interests of coastal States would need to be duly taken into account in any such provision. Doubt was also expressed whether such a provision would in fact affect the decisions of the authorities of coastal States in specific cases.
As a result, Article 11 of the Salvage Convention , as eventually adopted, reads: "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."
The issue of refuge for ships in need of assistance was brought to the fore again when a working group of IMO's Maritime Safety Committee (MSC), established in December 2000 to consider post-Erika safety-related issues, listed "ports of refuge" among the topics selected for further consideration.
Subsequently, in late December 2000-early January 2001, the Castor incident unfolded, resulting in the damaged tanker being towed around the Mediterranean Sea for over a month before a place could be found where a successful lightering operation could be carried out. Soon after, Mr. William A. O'Neil, Secretary-General of IMO at the time, suggested that the time had come for IMO to undertake, as a matter of priority, a global consideration of the problem of stricken vessels in need of assistance and to adopt whatever measures might be required to ensure that such ships could be provided with appropriate assistance and facilities as dictated by the prevailing circumstances.
The issue was discussed at some considerable depth by the MSC in May 2001, when the Committee's attention was drawn to the fact that, although the term "ports of refuge" had been widely used in shipping practice, it did not appear in any of the relevant conventions (eg UNCLOS, SOLAS, Salvage, OPRC, etc.). Use of the word "port" might be too narrow and restrictive vis-à-vis the envisaged scope of the geographical area which might, in 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 proposal by the IMO Secretariat to use the wider term "places of refuge". Another term used was "safe haven"; however, since both words denote almost the same thing, the one renders the other redundant and superfluous. The Committee eventually decided to use the term "places of refuge" in its further work on the issue; and advised other IMO Committees (the MEPC and Legal Committee) accordingly.
Ships with structural damage and a dirty or volatile cargo in their tanks are not among the most welcomed visitors in the coastal waters of any State and there is little point in attempting to apportion blame on those who have made decisions to keep stricken ships away from their coastlines. Nonetheless, in some cases, a refusal could result in compounding the problem, which may ultimately result in endangering life, the ship and the environment.
During the debate on places of refuge, the legal issues surrounding this concept were analysed and the question was asked whether a coastal State is under an obligation, or at least is not precluded, under international law, from providing a place (where a ship can be taken when it is disabled, damaged or otherwise in distress and is posing a serious risk of pollution), in order to remove the ship from the threat of danger and undertake repairs or otherwise deal with the situation.
International law recognizes the right of States to regulate entry into their ports (UNCLOS, Article 2, refers to the sovereignty of a coastal State over its land territory, internal waters, archipelagic waters and the territorial sea).
The right of a foreign ship to stop and anchor in cases of force majeure or distress 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).
The right of a foreign ship to enter a port or internal waters of another State in situations of force majeure or distress is not regulated by UNCLOS, although this constitutes an internationally accepted practice, at least in order to preserve human life. This, however, does not preclude the adoption of rules or guidelines complementing the provisions of UNCLOS.
Meanwhile, the right of a coastal State to take action to protect its coastline from marine pollution is well established in international law. Relevant provisions include: UNCLOS, Articles 194, 195, 198, 199, 211, 221, 225; Salvage Convention, Article 9; and Facilitation Convention, Article V(2).
Under longstanding maritime tradition and the practice of good seamanship, the master of a ship faced with a serious emergency is expected to seek shelter to avoid disaster. To some extent the practice is codified in the revised Chapter V of SOLAS, which requires that the owner, the charterer or the company operating the ship or any other person, shall not prevent or restrict the master of the ship from taking or executing any decision which, in the master's professional judgement, is necessary for safe navigation and protection of the marine environment.
Similarly, SOLAS Article IV provides that ships which are not subject to the provisions of the Convention at the time of their departure on any voyage, shall not become subject to the provisions of the Convention on account of any deviation from their intended voyage due to stress of weather or any other case of force majeure.
The duty to render assistance to vessels and persons in distress at sea is a well-established principle of international maritime law (Article 98 of UNCLOS) and SOLAS regulation V/7 requires Governments to ensure that any necessary arrangements are made for distress communication and co-ordination in their area of responsibility and for the rescue of persons in distress at sea round their coasts. These arrangements shall include the establishment, operation and maintenance of such search and rescue facilities as are deemed practicable and necessary, having regard to the density of the seagoing traffic and the navigational dangers and shall, so far as possible, provide adequate means of locating and rescuing such persons.
By focussing more on human life and safety rather than on what is to be done with the ship in cases of force majeure or distress, these provisions do not of themselves give a right of entry to a place of refuge, nor do they explicitly refer to the question of a coastal State's obligation to establish places of refuge. On the other hand, neither do they preclude such a principle.
Given this background, it has proved possible for IMO to develop the Guidelines on places of refuge for ships in need of assistance mentioned earlier on in a manner which retains a proper and equitable balance between the rights and interests of coastal States and the need to render assistance to ships which are damaged or disabled or otherwise in distress at sea.
It would be highly desirable if, taking the IMO Guidelines into account, coastal States designated places of refuge for use when confronted with situations involving ships (laden tankers, in particular) in need of assistance off their coasts and, accordingly, drew up relevant emergency plans, instead of being unprepared to face such situations and, because of that, risking the wrong decision being made by improvising or, in the heat of the moment, acting under pressure from groups representing various interests.