Safety | Security | Environment | Port operations | Legal | Trade facilitation | Response to contingency | Resolutions
Legal issues - Places of Refuge
The sinking of the tanker Prestige in November 2002 happening soon after the Erika and Castor incidents and all in Europe, has revived a debate on Places of Refuge in the world maritime community. As a result of lengthy and in-depth review and discussion, IMO adopted at its 23rd Assembly, December 2003, the following two resolutions setting out procedures for dealing with ships in distress.
- "Guidelines on places of refuge for ships in need of assistance"
- "Guidelines on Maritime Assistance Services (MAS)"
IAPH respects the Guidelines in that they provide coastal States and political
decision makers in the context of granting to a ship in distress a Place
of Refuge or not, with a procedural and operational framework to deal with
the issue.
However, IAPH believes that the currently applicable international legal
framework is not conclusive and satisfactory for Places of Refuge, as the
issue of liability and compensation for any damage resulting from granting
or denying a place of refuge to a ship in distress is not adequately addressed
or covered.
While IAPH is fully aware of the traditionally observed principle of rendering
assistance to vessels and persons in distress at sea and respects IMO initiatives
to that end, it firmly believes that a new convention is needed. This convention
should render the approach that the decision to give or deny access to
a place of refuge to a ship in distress should be based on a case by case
approach. In this approach the potential for damage immanent to refusing
access should be compared with the potential for damage immanent to permitting
the ship in distress to access the Place of Refuge. In case the risk of
damage if the ship were to remain on the high seas is higher than the potential
for damage to be caused in the Place of Refuge, the ship should in principle
be given access to remedy its troubles in a Place of Refuge. IAPH’s initial
position is worked out in:
IMO discussed this matter at the 89th (October, 2004) and 90th (April 2005) session of its Legal Committee and concluded that “At this point in time, there was no need to draft a convention dedicated to Places of Refuge” and “the more urgent priority would be to prompt ratification and implement the existing liability and compensation conventions”. After this new framework being in place, IMO will consider the effects and again validate the necessitation of a specific international rule in the context of Places of Refuge.
In August 2005, CMI proposed a new legal instrument to complement IMO’s Guidelines on Places of Refuge. IAPH expressed its view at CMI’s conference in February 2006 and IMO’s Legal Committee meeting in April 24-28, 2006, stating that while appreciating CMI’s works, IAPH respects at this stage IMO’s decision to prompt ratification of related conventions. In the context of the debate within CMI concerning its draft Instrument on Places of Refuge, IAPH further worked out its position in its letter to CMI of 22 June 2007:
Regional Developments – European Union
The two legislative institutions of the European Union, the European Parliament and the Council, are at this moment in the process of adopting the proposal of the European Commission to amend the existing European Vessel Traffic Monitoring Directive (Directive 2002/59).
This European Directive constitutes the EU legal provisions applicable to Places of Refuge in addition to the existing international conventions on compensation and liability. The proposed Directive of the European Commission aims at the establishment of a more clear and precise legal framework for places of refuge. This framework envisages the designation of an independent competent authority responsible for decision making in situations dealing with vessels in distress (similar to the UK SOSREP system). European seaports have supported such a clear decision making chain for a long time as this would speed up the final decision making about where to locate the vessel and to reduce the likelihood of conflicts of interests and contradictory orders of different authorities.
The European Parliament also provided an amendment to the Commission proposal laying down better compensation possibilities for ports in case they encounter damage as a result of offering a ship in distress a place of refuge. More in detail the European Parliament adopted the provision that Member States of the European Union shall ensure the compensation of costs and potential economic loss suffered by a port if such costs or economic loss are not compensated within a reasonable time by the owner or operator of the ship.
Unfortunately the Council of the European Union (the Institution representing the Member States) was not willing to accept such a liability scheme. This is also due to the fact that the current amendment of the Parliament is linked to the very controversial proposal for a European Directive on the civil liability of shipowners. This proposal seems to be blocked and as long no progress is made on that proposal also the negotiations on the Directive amending the EU Vessel Traffic Monitoring Directive cannot proceed.
European seaports are now awaiting the so called second reading phase in which the co-legislators will try to find some compromises on their main differences. Hopefully, a solution can also be found for the envisaged better compensation scheme for seaports in case of damage caused by a vessel in distress. EU seaports still believe that they should not be stuck with damage which will not be compensated in case they absorb risks in favour to the wider society by facilitating a ship in distress in their port.
It is not clear when the Directive will be finally adopted, but it is not likely that the European Parliament and Council will come to a compromise on all outstanding issues before 2008.
More information on EU developments: European Sea Ports Organisation (ESPO)
Roel.hoenders@espo.be / www.espo.be
