BREAKING UP IS HARD TO DO: by 2m3MTq1b

VIEWS: 4 PAGES: 8

									                       BREAKING UP IS HARD TO DO:
                         THE BITTER AFTERTASTE
                        OF THE PRESTIGE INCIDENT
                    Written and presented by Clay Maitland
                 Managing Partner of International Registries, Inc.
                              “SHIPPING 2003”
                     The Connecticut Maritime Association
                              Stamford, CT USA
                                March 18, 2003.

          IT’S ONLY MARCH, BUT, ALREADY, THIS HAS BEEN A BIG YEAR FOR

  BREAKUPS:THE U.S. AND GERMANY, GEORGE BUSH AND JACQUES CHIRAC; THE

  “OLD” EUROPE AND THE “NEW”; BILLY BOB THORNTON AND ANGELINA JOLIE;

               BRITNEY SPEARS AND JUST ABOUT EVERYONE...


           AT TIMES LIKE THIS WE ALL REMEMBER THOSE SAD, SAD SONGS:

    “SOMEONE’S BREAKING UP THAT OLD GANG OF MINE”; AND , OF COURSE,

                       “BREAKING UP IS HARD TO DO.”


          SOME BREAKUPS HAPPEN DEPENDABLY EACH YEAR, LIKE GEORGE

STEINBRENNER AND DEREK JETER, (OR BILLY MARTIN IN FORMER TIMES). OTHERS,

                 HOWEVER, HAVE MORE LASTING EFFECTS.


      AS FOR THE PRESTIGE BREAKUP AND SINGING, WHAT OTHER RECENT EVENT

                  HAS HAD THESE DIVERTING HEADLINES?


                             “GREEK MINISTER BLAMES SPAIN”


                                 “SPAIN BLAMES GIBRALTAR”


                                “FRANCE BLAMES BAHAMAS”


                         “CHIRAC BLAMES ‘RASCALS OF THE SEA’”,


                 AND SO FORTH, AND SO FORTH, AND SO ON.
        PERHAPS THE WIDESPREAD RANCOR, DISSENSION AND RECRIMINATIONS

    FOLLOWING THIS DISASTER HAVE BLINDED US TO A MORE FAR-REACHING

 CONSEQUENCE OF PRESTIGE: THE BREAKUP OF THE INTERNATIONAL CONSENSUS

 THAT HAS SUPPORTED THE WORK OF THE IMO (THE INTERNATIONAL MARITIME

 ORGANIZATION), THE U.N. MARITIME AGENCY BASED IN LONDON, AS THE “LEAD”

                    ORGANIZATION FOR VESSEL SAFETY.


      IT IS IRONIC THAT THIS IS TAKING PLACE AT THE VERY MOMENT THAT THE

 IMO’S “PARENT”, THE U.N. SECURITY COUNCIL, IS THREATENED WITH THE SAME

             FATE: MARGINALIZATION AND INTERNAL PARALYSIS.


         IT IS EVEN MORE IRONIC, FOR THOSE OF US WHO REMEMBER OUR OIL

 POLLUTION ABCs, THAT THE THREAT TO THE IMO’S POSITION COMES NOT FROM

THAT GREAT SATAN OF INTERNATIONAL SHIPPING, THE U.S. CONGRESS, BUT FROM

 THE IMO’S GREATEST (IF ERSTWHILE) FRIEND, THE MEMBERS OF THE EUROPEAN

                                  UNION.


        THIS IS CERTAINLY A TREMENDOUS ROLE REVERSAL FROM WHERE WE

WERE AFTER THE EXXON VALDEZ SPILL IN 1989; THEN, YOU’LL REMEMBER, IT WAS

   OUR CONGRESS THAT STOOD THE CORE PRINCIPLES OF MARINE POLLUTION

 LIABILITY ON THEIR HEADS; THEN, YOU’LL RECALL, IT WAS THE UNILATERALIST

  AMERICAN COWBOYS, LED BY ANOTHER “COWBOY” NAMED GEORGE, SENATOR

GEORGE MITCHELL OF MAINE, THEN THE SENATE MAJORITY LEADER, WHO PUSHED

THROUGH STRICT LIABILITY, DOUBLE HULLS, THE POSSIBILITY OF DIRECT ACTION

AGAINST THE INSURER, NO FEDERAL PRE-EXEMPTION OF STATE STATUTES, AND ALL

               THE REST, AS THE “INFAMOUS” OPA ’90 PACKAGE.


          THE U.S. WAS DENOUNCED BY ALL ITS ALLIES, ESPECIALLY THE E.U.

COUNTRIES, FOR ABANDONING THE 1969 (AS IT THEN WAS) CIVIL LIABILITY FOR OIL
    POLLUTION (CLC) REGIME, PARTICULARLY AS TO ITS LIMITED LIABILITY

                              PROVISIONS.


     WELL, OUR OLD FRIEND THE ERIKA CAME CALLING IN THE BAY OF BISCAY IN

  DECEMBER, 1999; AND THE PRESTIGE, WITH A LITTLE HELP FROM THE SPANISH

          GOVERNMENT (IN THE BAY OF BISCAY) IN NOVEMBER, 2002.


       IF YOU WILL ALLOW ONE VERY POOR ATTEMPT AT METAPHOR, WHEN THE

  NEWS BROKE ON 19 NOVEMBER, MANY OF US HAD, WELL, A SINKING FEELING.


                 THIS WAS JUST ONE TANKER DISASTER TOO MANY.


       THE MOST SERIOUS CONSEQUENCE OF THE POLITICAL AND MEDIA OVER-

 REACTION HAS BEEN THE EMBRACE OF UNILATERALISM BY FRANCE, SPAIN AND

                      PORTUGAL, AND THE EU ITSELF.


       AS BILL O’NEIL, SECRETARY-GENERAL OF IMO, SAID LAST MONTH: “IF WE

 END UP WITH REGIONAL REGIMES, IT WOULD BE DISASTROUS FOR THE SHIPPING

                               INDUSTRY.”


       OVERNIGHT, WELL-ESTABLISHED LEGAL PRINCIPLES, AND COMMERCIAL

PRACTICES, ARE BEING THROWN TO THE WINDS. THE RIGHT OF INNOCENT PASSAGE

IS BEING UNILATERALLY ABROGATED, AT LEAST FOR TANKERS. MORE IMPORTANT

  IN ITS LONG-TERM RESULT IS THE ACTION OF THE EUROPEAN COMMISSION, ON

DECEMBER 20, WHICH PUT FORWARD A NEW REGULATION BANNING THE CARRIAGE

  OF HEAVY OILS IN SINGLE-HULL TANKERS, ACCELERATING THE PHASING-OUT

    SCHEME FOR SINGLE HULLS AND WIDER APPLICATION OF THE CONDITION

     ASSESSMENT SCHEME, I.E., REVISED REGULATION 13G OF THE MARPOL

                          CONVENTION, ANNEX I.
      ARTICLES 17-18 OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE

  SEA (UNCLOS) SET FORTH THE RIGHT OF INNOCENT PASSAGE THROUGH THE

                           TERRITORIAL SEA.


         THE WHOLE NOTION OF INTERNATIONAL CONSENSUS ON MARITIME-

RELATED ISSUES HAS THEREFORE BEEN PUT IN QUESTION. WHILE IT IS MUCH TOO

EARLY TO WRITE AN OBITUARY NOTICE FOR THE IMO, THAT ORGANIZATION WILL,

 IF THIS CONTINUES, BECOME MARGINALIZED WHILE THE SUPERPOWER BLOCS

               NEGOTIATE SEPARATE, STATIST “SOLUTIONS.”


         HOW WOULD THIS AFFECT MEMBERS OF THE CMA? IN THE PRESENT

 SITUATION, TIME CHARTERERS OF SINGLE-HULL TANKERS MAY BE LEFT WITH

    NOWHERE TO GO. CAN THEY TERMINATE A TIME CHARTER PARTY FOR

  FRUSTRATION OR OTHER GROUNDS? FURTHERMORE, IF A VOYAGE HAS TO BE

 REROUTED OUTSIDE THE TERRITORIAL SEA OF THE EU, WHO PAYS THE COSTS?


         AT IMO, THE PRIVATE SECTOR, PARTICULARLY THROUGH THE OPEN

 REGISTRIES, HAS ALWAYS HAD A PLACE AT THE TABLE. THE EU, HOWEVER, HAS

    NOW ESTABLISHED A EUROPEAN MARITIME COMMISSION WITH STRONG

  LEGISLATIVE TEETH, HEADED BY WILLEM DE RUITER, AN EXPERIENCED AND

                      PROFESSINAL CIVIL SERVANT.


      AS LOYOLA DE PALACIO, VICE PRESIDENT OF THE EUROPEAN COMMISSION

FOR TRANSPORT, REMARKED LAST MONTH, “I TRULY BELIEVE THAT THE TIME HAS

 NOW COME TO CHALLENGE THE FUNDAMENTALS OF INTERNATIONAL SHIPPING

    LAW, ADJUSTING THEM TO THE NEW GEOPOLITICAL ENVIRONMENT AND

                    TECHNOLOGICAL DEVELOPMENTS.”


      I MUST CONFESS THAT I AM NOT WITHOUT SYMPATHY FOR MS. DE PALACIO,

AND THOSE WHO, LIKE HER, ARE FRUSTRATED WITH THE RIGIDITY OF SHIPPING’S
ESTABLISHED INSTITUTIONS. THE IMO, THROUGH NO FAULT OF ITS OWN, HAS BEEN

 SLOW TO ADAPT TO NEW POLITICAL REALITIES. BUT THIS LACK OF FLEXIBILITY

 MAY BE ASCRIBED TO ONE WORD “SOVEREIGNTY.” IT’S THE MEMBERS, NOT THE

          ORGANIZATION ITSELF, THAT HAVE BEEN RECALCITRANT.


         WE FEEL THAT IMO CAN, AND MUST, BE RETAINED AS THE CENTRAL,

             CONTROLLING FORUM FOR MARITIME LEGISLATION.


        HOW DO WE RESCUE IMO? WE HAVE TO GET OVER THE IDEA THAT AN

 INTERNATIONAL BODY CANNOT PERFORM REGULATORY DUTIES. PUT ANOTHER

WAY, IMO SHOULD NOT BE SEEN AS PURELY “CONSULTATIVE”, BUT AS A VEHICLE

FOR INTERNATIONAL MARITIME POLICY. THIS WILL INEVITABLY MEAN A DEGREE

OF ENFORCEMENT, AS IN THE CASE OF THE FLAG STATE CODE AND MODEL AUDIT

                                SCHEME.


      ALL IS NOT LOST, IN TERMS OF SALVAGING IMO. IT IS CLEAR THAT THE EU

  WOULD WISH TO TAKE ON SUCH CONTENTIOUS ISSUES AS TRANSPARENCY OF

 VESSEL OWNERSHIP. THE EUROPEAN UNION, ITSELF, IS NOT MONOLITHIC; THE

 DUTCH, GREEKS, AND PROSPECTIVE MEMBERS SUCH AS CYPRUS WILL NO DOUBT

RESIST ABANDONMENT OF THE CONSENSUS-BASED APPROACH PROVIDED BY IMO.

THE UNITED STATES, FRESH FROM ITS SUCCESSFUL SKIPPERING OF THE ISPS CODE

   THROUGH LAST DECEMBER’S IMO SESSION, MAY ALSO RECOVER ITS FADING

    ENTHUSIASM FOR MULTILATERALISM, AT LEAST IN MARITIME MATTERS.


      THAT SAID, PRESTIGE, LIKE ERIKA, HAS SPED UP THE PACE OF CHANGE. THE

  FACT THAT THE VESSEL’S OWNER, UNIVERSE MARITIME, WAS NEVER GIVEN A

  HUMAN IDENTITY, WILL BE A CONTINUED RED FLAG FOR OPPONENTS OF OPEN

REGISTRIES, AND OF TRADITIONAL WAYS IN WHICH OUR INDUSTRY DOES BUSINESS.
       AFTER PRESTIGE (AND ERIKA) THE PRACTICE OF “NAMING AND SHAMING”

    CHARTERERS, CARGO INTERESTS AND THE LIKE—HOWEVER UNFAIR THE

     PARTICULAR CASE MAY MAKE SUCH A PRACTICE—WILL BECOME MORE

                      FASHIONABLE, OR ACCEPTABLE.


 AND FLAG STATES OURSELVES WILL COME UNDER HEIGHTENED SCRUTINY, WITH
 PRESSURE BROUGHT TO BEAR ON CLASS SOCIETIES TO “OPEN THEIR BOOKS”; ON
THE FLAG STATES FOR WHICH THEY ACT, AS RECOGNIZED ORGANIZATIONS; AND ON
                                OWNERS.

      FINALLY, “PRESTIGE – ERIKA” WILL IN MY OPINION WORK TO ACCELERATE

    THE DRIVE TO GATHER EVERMORE INFORMATION ON ALL OF THE “USUAL

SUSPECTS”, A TREND THAT IS STRENGTHENED BY THE DRIVE TO ACCELERATE THE

PHASE-OUT OF SINGLE-HULLED TANKERS, TO TIGHTEN PORT STATE CONTROL, AND

FINALLY, BY THE ADOPTION OF THE ISPS MARITIME SECURITY CODE. ALL OF THIS

MEANS THAT BIGGER AND BETTER DATABASES WILL BE BUILT, COVERING LENDING

  INSTITUTIONS, CLASS SOCIETIES, CHARTERERS, UNDERWRITERS, FLAG STATES

 OWNERS, OPERATORS AND OTHER “STAKEHOLDERS.” ALL OF WHICH LEADS TO A

FAVORITE EUROPEAN PRACTICE: GO FOR THE “DEEP POCKET” WHENEVER THERE

                          IS A MAJOR CASUALTY.


          I DO NOT WISH TO SOUND A CYNICAL NOTE. A GREAT DEAL OF OUR

   INDUSTRY’S PROBLEMS—AND THOSE OF IMO—HAVE COME FROM A DEEPLY

 INGRAINED RELUCTANCE TO REGULATE OURSELVES, THEREFORE OPENING THE

DOORS TO THE LOYOLA DEL PALACIOS WHO ARE QUITE WILLING TO DO IT FOR US.

 THIS HAS NOT BEEN HELPED BY DIVISIONS WITHIN OUR OWN INDUSTRY, ITSELF.


      WHEN WE SAY THAT “BREAKING UP” IS A THEME THAT CHARACTERIZES OUR

PLIGHT IN THE AFTERMATH OF “PRESTIGE – ERIKA”, WE SHOULD ALSO RECOGNIZE

THAT THE OLD DIVISIONS AND RIVALRIES THAT PREVAIL IN OUR ANCIENT CALLING

  ARE A CONTINUED IMPEDIMENT TO EFFECTIVE SELF-REGULATION. AFTER ALL,

 EVERY BRANCH OF OUR INDUSTRY HAS ITS OWN, SEPARATE TRADE ASSOCIATION:
  INTERTANKO, INTERCARGO, ICCL, OCIMF, -- ALL ARE VALUABLE AND WORTHY

   OUTFITS. UNFORTUNATELY, WHEN M. CHIRAC DENOUNCES “RASCALS WHO

OPERATE FLOATING GARBAGE CANS”, AND WHEN EUROPEANS AND AMERICANS SEE

THESE EMOTIVE AND INDEED REPULSIVE PHOTOGRAPHS OF DYING CORMORANTS,

 OIL-SOAKED BEACHES, TEARFUL FISHERMEN AND OTHER POLITICALLY POTENT

   IMAGERY, WE, THE INDUSTRY HAVE A VERY SMALL VOICE WITH WHICH TO

RESPOND, AND FEW ARTICULATE SPOKESMEN, WHO COULD HELP PUBLIC OPINION

TO FOCUS ON THE FACTS. WE THEN WONDER WHY IMO IS NOT LEFT ALONE, TO DO

 ITS WORK. THE REASON IS SIMPLE: IN TIMES OF CRISIS, OUR IMPULSE IS TO RUN

   AND HIDE. ASK ANY BANKER OR SHIPOWNER. NGO’s (NON-GOVERNMENTAL

  ORGANIZATIONS) ARE THE CORE OF OUR INDUSTRY. ONE OF THE STRENGTHS,

 INDEED, OF OPEN REGISTRIES IS THAT WE HAVE GIVEN SUCH INDUSTRY GROUPS

   ACCESS, AND PARTICIPATION IN OUR DECISIONAL PROCESSES. SO-CALLED

 TRADITIONAL FLAG STATES, AND PORT STATES, FOR THE MOST PART, HAVE FELT

 THAT THEY COULD DO WITHOUT THIS PRIVATE INDUSTRY INVOLVEMENT. THAT,

  STATED SIMPLY, IS WHY THE SPANISH GOVERNMENT WAS CLUELESS WHEN IT

   TOWED THE PRESTIGE OUT TO SEA, INSTEAD OF LETTING IT INTO A PORT OF

REFUGE. THAT, ALSO, IS ONE MAJOR REASON WHY ALL GOVERNMENTS NEED THE

   IMO - NOW, MORE THAN EVER. WE ALL SEE HOW INEXPERT THE EUROPEAN

COMMISSION HAS BEEN, IN CLINGING TO DOUBLE HULLED TANKERS AS A SOLUTION

THAT WILL, IN THE LONG RUN, NOT ACCOMPLISH WHAT THEY DESIRE. THE ONLY

  HOPE, THEREFORE IS TO STRENGTHEN THE IMO IN WHAT IS AN EVER-HIGHER-

 STAKES POKER GAME, WITH SO MUCH AT RISK FOR ALL OF US. “RUN AND HIDE”

                        JUST WON’T DO, ANY MORE.


                                   THANK YOU.


                                __________________
-o0o-

								
To top