Places of Refuge

Eric Van Hooydonk

• Publisher: Informa Law from Routledge
• Year: 2020
• ISBN:
  9781000341508
• Edition: 1
• Topic: Jura
• Subtopic: Seerecht

The need for specific legal arrangements governing ships in distress and places of refuge is one of the most topical problems in both public and private maritime law. The headline grabbing shipping disasters involving the loss of the Erika (1999) and the Prestige (2002) attracted the attention of the IMO, the Comité Maritime International, the European Union, national maritime authorities around the globe and the maritime industry in general. Ultimately the impact of pollution on local economies and the environment was enough to arouse the concern of a broad swathe of public opinion. Places of Refuge provides clarity on: • The scope of the right of access • The conditions under which coastal authorities may deny access • The liability of authorities granting or denying access • The basis and the conditions of financial securities • The obligation to establish contingency plans

CHAPTER 1

Introduction and overview

1. On 17 October 2008, the plenary session of the 39th Conference of the Comité Maritime International (CMI) in Athens adopted a Resolution and a Draft Convention¹ on places of refuge for ships in need of assistance. In accordance with the Resolution, the Draft Convention was submitted for discussion to the Legal Committee of the International Maritime Organization. Besides the hoped-for formalisation of the text as an international treaty, the CMI Draft Convention is, to a large extent, to be regarded as an attempt to represent current international customary law. Irrespective of the reiteration by IMO’s Legal Committee in April 2009 of its position that there is currently no need for an international convention, the text may therefore immediately serve as a semi-official codification of existing international law. This is, for that matter, the first time in the history of international law that an endeavour has been made to codify this particular matter. Hence, the text adopted by the CMI is a milestone.

2. In the present study, the CMI Draft Convention is, first and foremost, considered in a broader policy context (chapter 2). Subsequently, an attempt is made to describe the current state of international law insofar as the accommodation of ships in need of assistance is concerned on the basis of the legal sources that were already available before the adoption of the CMI Draft Convention (chapter 3). Next, an outline is provided of the genesis, the necessity and the legal status of the CMI Draft Convention (chapter 4). The subsequent chapter provides an extensive article-by-article commentary on the CMI Draft Convention (chapter 5). On this basis, the CMI Draft Convention is then compared with the regional European regime (chapter 6). Finally, the study looks ahead at the further role of the Draft Convention (chapter 7) and a number of general conclusions are drawn (chapter 8).

3. The aforementioned Resolution and the Draft Convention are hereinafter referred to as respectively the CMI Resolution and the CMI Draft Convention. The full English texts have been added as appendices to the present study, alongside earlier drafts, the most relevant IMO Guidelines and the principal European texts.

1.  On the use throughout the present study of the term “Convention” rather than “Instrument”, see infra, nos. 261–262.

CHAPTER 2

The context of recent policy developments

2.1. NOTABLE SHIPPING INCIDENTS

4. Situations where a ship in distress seeks a place of refuge are as old as maritime law itself. Historically, offering ships shelter against the elements is, for that matter, one of the primary functions of ports.² To some extent, the words port and refuge may be considered as synonyms; consequently, the phrase port of refuge, like the term safe haven, has a pleonastic ring to it.³

5. To this day, the accommodation of ships in need of assistance in places of refuge is, along many shorelines, a regular and even routine-like activity.⁴ In the vast majority of cases, such operations are successful in preventing further damage to the ship, its cargo and the environment; they attract very little if any attention from the media or policymakers, and generally do not give rise to legal disputes, let alone regulatory activity.

6. The well-known fact that new steps in the development of maritime law are often a response to notable shipping incidents is also apparent in the context of the accommodation of ships in need of assistance. The disasters with the distressed, yet unaccommodated, oil tankers M/S Erika⁵ and M/S Prestige,⁶ which occurred respectively in 1999 off France and in 2002 off Spain, and which both caused serious environmental harm, stirred the public opinion and prompted regulatory action at various levels. The new rules of law were also inspired by the much-discussed incident involving the damaged oil tanker M/S Castor,⁷ which spent over a month in a distressed state in the Mediterranean in 2001. After the vessel had been refused access to eight coastal states, it was eventually able to take shelter off the coast of Tunisia. Some cases, including those of the M/S Frontier (St Helena),⁸ the M/S Toledo (Ireland)⁹ and the M/S Long Lin (Netherlands),¹⁰ led to interesting lawsuits attracting the attention of legal experts around the world.

7. The purpose of the aforementioned regulatory initiatives was primarily to enhance the availability of places of refuge, to clarify the right of access under international law to such places of refuge, to set standards for objective and expert decision-making by coastal authorities, and to offer an adequate framework for the compensation of damage. As we have previously mentioned,¹¹ the CMI Draft Convention discussed in this book is the first and hitherto only attempt to arrive at a legally binding global regulation. Nonetheless, the text cannot be detached entirely from related regulatory projects and current international law. Therefore, the next paragraphs provide an outline of the wider policy-related and legal context and Chapter 3 offers a broad overview of the status of international law upon its codification in the CMI Draft Convention.

2.2. THE REGULATORY RESPONSE

2.2.1 The response from the International Maritime Organization

2.2.1.1 The IMO Guidelines on places of refuge for ships in need of assistance

8. In 2003, under Resolution A.949(23), the International Maritime Organization (IMO) adopted the Guidelines on places of refuge for ships in need of assistance.¹² This text, hereinafter referred to as the IMO Guidelines, makes recommendations for standards of decision-making on whether or not to grant access to a ship in need of assistance. In other words, the purpose of the IMO Guidelines is to provide the parties concerned with a framework that enables them to generate an effective practical response to situations where ships are in need of assistance. They describe which concrete action may be expected from duly diligent shipmasters and salvors on the one hand and adequately organised coastal States on the other.¹³

9. The initiative to develop the Guidelines was welcomed by the General Assembly of the United Nations, which has continued to encourage States to draw up plans and to establish procedures to implement the Guidelines ever since they were adopted.¹⁴

10. The IMO Guidelines are not mandatory; they are merely soft law.¹⁵ For States that have a legislative or treaty obligation to provide refuge to a ship in distress, this obligation will supersede the IMO Guidelines should a conflict be perceived.¹⁶ Although the IMO Guidelines assume that coastal States must decide on a case-by-case basis whether or not access should be granted, most commentators agree that the text does not imply that the classical right of entry under customary law no longer exists.¹⁷

11. The IMO Guidelines played a prominent role in preparations for the CMI Draft Convention. First and foremost, the CMI Draft Convention is intended to provide a binding treaty regime, whereby the standards laid down in the IMO Guidelines are upgraded by connecting hard legal consequences with compliance or non-compliance.¹⁸ Second, the editors of the CMI Draft Convention took due account of the terminology and material provisions contained in the IMO Guidelines. In the discussion of the provisions in the CMI Draft Convention that follows, repeated reference will therefore be made to the IMO Guidelines.

2.2.1.2 The rejection by the IMO Legal Committee of a treaty initiative

12. After the establishment of the IMO Guidelines, the Legal Committee of the IMO considered whether there was a need for an additional, legally binding, international regulation regarding places of refuge, incorporated into a specific convention on this matter. Despite support for such action on the part of the CMI¹⁹ as well as certain States and interest groups, and similar calls from legal experts,²⁰ there was little enthusiasm among a majority of IMO Member States.

13. The Legal Committee of the IMO decided in April 2005 that there was no need for a specific convention on places of refuge, and that the implementation of the new or anticipated international liability tools (especially the 1996 LLMC Protocol, the Supplementary Fund Protocol, the HNS Convention, the Bunkers Convention and the Wreck Removal Convention) should be given priority. It argued that not until after an evaluation of experiences with these new liability regulations would it be possible to assess the need for an additional convention dealing specifically with places of refuge. Although the Legal Committee of the IMO continued to monitor the activities of the CMI, it announced that it would, in the short term, not be taking initiatives in relation to places of refuge.²¹

14. Over the ensuing years, the Legal Committee continued to take a wait-and-see approach.²² With regard to the liability and compensation regime, for that matter, there is a general feeling within the IMO that a shift of focus is required from lawmaking to ratification and enforcement.²³

15. The CMI continued to steer its own course and, despite the lukewarm interest from the IMO, on 17 October 2008 finalised the Draft Convention that is the subject of the present study. As has been pointed out,²⁴ the CMI Draft Convention was intended to be submitted for discussion to the Legal Committee of the IMO in 2009.

16. In April 2009, the IMO Legal Committee considered the CMI Draft Convention as an “Any other business” agenda item of a purely informational nature.²⁵ Even if IAPH stressed before the Committee that the subject of places of refuge was of great importance and that it was the duty of the Committee to address the issue as a matter of urgency, before another incident occurred, all the delegations that spoke - while expressing their appreciation to the CMI for the high quality of the draft treaty and its contribution in general to the Committee’s work - reiterated the view that there was no need for a new convention at this point in time. According to these delegations, the international regime comprising the existing liability and compensation conventions for pollution damage at sea provided a comprehensive legal framework, especially in conjunction with the IMO Guidelines and other regional agreements. While the question of places of refuge was undoubtedly an important topic, which one needed to keep under review rather than to embark on the preparation of a new treaty instrument, priority should be given by the Committee to enhancing the implementation of existing conventions. Once all of these conventions, including the Nairobi Convention on the Removal of Wrecks, 2007, had entered into force and their effectiveness had been assessed, the ...