PLACES OF REFUGE Towards a liability and compensation framework by xtq29964

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									european institute of maritime and transport law
europees instituut voor zee- en vervoerrecht
institut européen de droit maritime et des transports

faculty of applied economics
department of transport and regional economics


                                                        International workshop :

                                                        PLACES OF REFUGE :

                                   Towards a liability and compensation framework ?
                                     Rights and responsibilities of port authorities

                                   University of Antwerp - Thursday, 11 December 2003

                                                           PROCEEDINGS


Table of contents

I.           Nunca maìs : avoiding another Prestige accident, J. Dhaene, MEP                            p.2

II.          Methodology for risk assessment in coastal zones in Spain, G. Gómez Barquín, Puertos del
             Estado                                                                             p.2

III.         The UK experience with “places of refuge”, R. Middleton, Secretary of State’s Representative
             Maritime Salvage and Intervention                                                      p.3

IV.          The perspective of shipowners and port authorities
             IV.1 European Community Shipowners’ Association, A. Guinier                                p.3
             IV.2 European Sea Ports Organisation, P. Verhoeven                                         p.4

V.           Places of refuge : the international context
             V.1     International Association of Ports and Harbours , F. van Zoelen                    p.5
             V.2     Comité Maritime International, P. Griggs                                           p.6
             V.3     International Maritime Organisation, C. Young                                      p.7

VI.          The need for a legal framework on places of refuge, D. Sterckx, MEP                        p.8

VII.         Accommodating a ship in distress : rights and responsibilities of port authorities, Prof. Dr. E.
             Van Hooydonk, European Institute of Maritime and Transport Law                             p.9

VIII.        The way forward in Europe
             VIII.1 European Commission, G. Bergot                                                      p.10
             VIII.2 European Maritime Safety Agency, W. de Ruiter                                       p.11

IX.          Panel discussion with representatives of European port authorities                         p.12

X.           Conclusions of the workshop
             X.1    Legal conclusions: Prof. Dr. Eric Van Hooydonk, Chairman of the European Institute
                    of Maritime and Transport Law                                               p.13
             X.2    Policy conclusions: David Whitehead, Chairman of ESPO                       p.14
I.     Nunca maìs : avoiding another Prestige accident
       Jan Dhaene, MEP - Member of the RETT Committee for the Greens/ALE fraction


J. Dhaene recalled the circumstances of the Prestige disaster and highlighted the need for
answers on the causes of the oil spill.

The EP reacted immediately after the accident by publishing a Resolution on 19 December
2002. It then organised a public hearing in March 2003 as well as a fact- finding mission in
Galicia and Brest, which aimed to collect information for the preparation of a Parliament’s
own-initiative report. The “Sterckx report” was adopted on 23 September: among others, it
highlights the need to set up a system of places of refuge together with a compensation and
liability regime for ports accommodating ships in distress.

In October, the European Parliament set up a Temporary Committee on “improving safety at
sea”. Its objective is to examine in detail maritime disasters (in particular the Prestige and the
Erika), to assess maritime safety standards and to propose additional measures where
necessary. The final report of this Committee is expected in April.


II.    Methodology for risk assessment in coastal zones in Spain
       Gonzalez Gómez Barquín, Direction for Infrastructure and Services, Puertos del
       Estado


G. Gomez described the risk assessment methodology which is being developed in the field of
maritime safety in Spain. It is based on the experience of the UK, Germany and Australia and
draws lessons from the strategy used to deal with the Prestige accident. It also incorporates
the IMO Guidelines.

The assessment process consists of the following steps :
- study of the risks (establishment of the context and identification of the risks);
- analysis (on the basis of quantitative and qualitative criteria) and evaluation of the risks
   (using a Matrix and a Tree model);
- options and actions to address the risks.

Risks are reduced by providing shelter to a ship. The methodology has therefore been applied
to places of refuge along Spanish coast. The selection of Places of Refuge took place in 3
stages, on the basis of technical data (taking into account geographical and natural conditions
as well as existing equipment): 231 areas have been identified as possible places of refuge in
the first place and in the last stage, only 35 have been selected (this final decision was taken at
the political level). The list of safe heavens has however not yet been sent to the Commission.




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III.   The UK experience with “places of refuge”
       Robin Middleton, Secretary of State’s Representative Maritime Salvage and
       Intervention


In 1967, there was no emergency response system in place in the UK to deal efficiently with
the Torrey Canyon accident off the British coast. On the basis of the ORPC Convention, a
national contingency plan was developed. But that was not sufficient to avoid the Sea
Empress oil spill in 1996.

Following this disaster, the “Lord Donaldson’s Report” was published, which put forward, on
the basis of the experience accumulated, a number of recommendations to respond to the risks
of maritime pollution.

A new function was set up: the Secretary of State’s Representative Maritime Salvage and
Intervention (SOSREP). R. Middleton took up that positio n.

His role is to assess and to authorise/reject, without recourse to a higher authority, requests
from ships for a place of refuge. His decision is the ultimate one, on behalf of the State : he is
either backed by the government or sacked if the decisio n he has made is subject to criticism.

Persons covered by the SOSREP directions benefit from the following safeguards:
- They may recover costs from the ship owner ;
- The Secretary of State may make payments to them directly ;
- They can make applications to the SOSREP for costs of complying with unreasonable
   directions.

The UK policy in relation to places of refuge is that providing shelter to a ship in distress is an
obligation (overriding consideration being risk to life) and everywhere could be a Place of
Refuge (there is no list of specific safe heavens, only criteria for each place).

The UK has a flexible and efficient response system which involves different parties: the
Search and Rescue bodies, the SOSREP, the Coastguard Agency, Harbour Masters etc. A
National Contingency Plan is invoked in case of incident.


IV.    The perspective of shipowners and port authorities


IV.1. Shipowners’ perspective
      Alfons Guinier, Secretary General of the European Community Shipowners’
      Association (ECSA)


A. Guinier insisted on the urgency to establish places of refuge. That necessity had been
confirmed by the Castor incident and the Prestige disaster. Both ships were in rather good
condition (at least they were not sub-standard vessels as it was the case for the Erika), but had
been refused access to a port.




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In order to avoid accidents, it is necessary (as required by Directive 2002/59 on ship reporting
and monitoring –Member States have to transpose it by February 2004) to:
- designate strategic places of refuge (and install necessary equipment such as tugs etc.)
- develop clear cut emergency response plans
- set up procedures for ships in distress.

As a result of the Prestige accident, it emerged clearly that there was a need for:
- a clear decision making structure
- a chain of command in case of maritime emergencies
- transparency of the decisions (which must be based on technical expertise, not on political
   grounds).

There already exist examples of good practices which fulfil these requirements (Cf. UK
experience). But it is necessary to extend the network of places of refuge and adequate
emergency plans at international level.

As far as compensation is concerned, ECSA believes that the CLC, IOPC, HNS and Bunker
Oil Conventions (when all in force) will provide a protective and efficient regime. The
advantage of the system is that victims can get compensation for the damage incurred before a
court decision is made on the responsibilities related to the pollution. Insurance of ships is a
key element in the framework of a compensation regime.


IV.2. Port authorities’ perspective
      Patrick Verhoeven, Secretary General of the European Sea Ports Organisation
      (ESPO)


Given the political momentum, ESPO co-organised this workshop, with the aim to discuss the
role of port authorities in relation to the accommodation of ships in distress.

Four essential points must be borne in mind when developing a system of places of refuge:

1.     There is no straightforward answer when assessing a ship’s request for a place of
       refuge. A balanced approach is needed to combine differing interests :
-      conciliation of the humanitarian right of ships to seek refuge and of the right of self-
       protection of the coastal State/port ;
-      balance between the safety of the ship and its crew and safety of the port’s own
       environment, people and economy.

2. Given the difficulty to make the decision to accommodate a ship in distress or not,
   guidance is necessary, for the competent authorities on shore and for the ship’s master, to
   assess each case adequately. The final decision should be based on risk assessment and be
   taken on a case by case basis, depending on the local circumstances. A common
   framework is also necessary to ensure coordination of all parties involved.

3. Plans must be developed at national level, which designate, on the basis of objective
   criteria, strategic places (not necessarily ports) of refuge and contain accommodation
   arrangements (e.g. adequate equipment) and emergency response procedures. Cooperation
   between coastal States is essential in this respect.


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4. A clear chain of command must be set up: one person should have the final responsibility
   in order to ensure that adequate decisions are made in the heat of the moment. This person
   should take advice from all relevant players and should anticipate pressures.

5. A specific regime should be developed to guarantee that a port can recover the costs
   related to the accommodation of a ship in distress and can also be promptly compensated
   for any damage caused by a ship in distress. The current international framework is
   insufficient: there is a need for clear and simple compensation rules. Insurance should be
   compulsory for all ships.

6. An adequate framework is taking shape both at international and European level. The
   request of Parliament to the Commission to investigate the issue of compensation for ports
   is very much welcomed. However, the proposal of Parliament to introduce criminal
   sanctions for port authorities is disproportionate: focus should rather be on
   encouragements to ports and shipowners.


V.      Places of refuge : the international context

V.1.    International Association of Ports and Harbours
        Frans van Zoelen, Vice-Chairman of the Legal Protection Committee of IAPH


The term “Ports” of refuge is used too commonly. One should rather refer to safe havens or
places of refuge.

The main issue, in relation to the accommodation of ships in distress, has to do with the
relationship between the maritime, coastal and port authorities and ships seeking refuge.

Ports play a pivotal role in this context and the decision to provide refuge or not is based on a
mechanism which has to find the right balanced between :
- the protection of lives (ship’s crew or local populations in case of risk of explosion), the
   environment and property (value of the cargo of the ship vs. commercial interests of the
   port);
- the combination of two major international principles : the humanitarian right for a ship to
   seek refuge (exception to a coastal State’s territorial jurisdiction) vs. the right of self-
   protection of any sovereign State.

Such a decision must be based on a risk assessment and it has to be objective, transparent and
verifiable (i.e. taking into account facts, available information etc.).

There are three aspects related to places of refuge:

-    operational elements: there is a need for a common framework to assist ships in distress:
     the IMO guidelines will be a useful tool to assess critical situations and to provide
     guidance to governments, shipmasters, salvors etc.

-    geographical approach: places of refuge must be designated.



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-   a specific compensation regime is necessary because there are gaps in the current
    international rules (shipowners can limit their liability, not all vessels are covered, funds
    are limited etc.): the IMO Legal Committee is investigating the issues of liability and
    compensation for places of refuge. It is not clear yet which way to go: Is a regional
    approach preferable? If the International forum is the most adequate context: should a
    Convention on places of refuge be prepared or a new compensation regime developed?


V.2.   Comité Maritime International
       Patrick Griggs, President of CMI


There is a need for practical solutions to the question of accommodation of ships in distress.
Lessons, and notably general principles, can be drawn from cases such as the Prestige or
Castor. The new IMO Guidelines (which are contained in the IMO Assembly Resolution of
December 2003) provide 2 sets of practical guidance for masters/salvors of ships in need of
assistance and for Coastal States to evaluate the risks associated with providing refuge to such
vessels. Their decision can only be taken on a case-by-case basis and they must find the right
balance between their own economic and environmental interests and those of the ship.

The CMI helped the IMO to review the legal aspects related to these practical guidelines on
places of refuge.

A CMI working group on places of refuge produced a first report for the IMO Legal
Committee in October 2002 which concluded that most contracting governments had not
enforced their international obligations (notably according to UNCLOS or to the Salvage
Convention) in relation to the accommodation of ships in distress (main exception being the
UK).

The CMI pursued its work and investigated liability issues (liability of a State which either
allows or refuses to give refuge to a ship in distress) as well as the question of compensation
for places of refuge, on the basis of a questionnaire which was circulated to national
associations. Most respondents agreed that a government could not be held responsible for a
damage resulting from its decision to give/refuse access to a ship, unless it is established that
it has acted negligently or that there is a direct link between the decision and the ensuing
damage. As far as compensation is concerned, most responses showed that money is expected
to come from the ship’s P&I insurance and the IOPC Fund. Moreover, shipowners would be
responsible, unless it is proved that third parties have contributed to the damage.

The CMI is now building on the results of this questionnaire and working on solutions, with
the aim to present some conclusions at the next International Conference of the CMI
scheduled in June 2004 in Vancouver. The following main issues will be addressed:
- Should there be an obligation to offer a place of refuge to a ship in distress?
- Is there sufficient insurance available to meet claims related the accommodation of ships
   in distress?
- Should States designate places of refuge and make their list public?
- Should States set up a decision making mechanism to deal with requests for access to a
   place of refuge?
- What is the civil liability of port authorities, coast guards, salvors, shipowners etc.



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-     Should a special compensation system be developed to compensate port/State authorities
      which grant access?
-     Should there be any penal liabilities arising from place of refuge incidents?
-     Should States set up special reception facilities to which ships in distress could be
      directed?
-     What are the most appropriate measures to take at international level (new Convention?
      Guidelines?)?

In any case, if new measures are developed at international level, it will be fundamental that
they are adopted by enough States so that they can be enforced.

This is a highly political issue. The tricky point is that States will never accept to ratify a
Convention which imposes on them an absolute obligation to give refuge. On the other hand,
if the internationa l instrument leaves too much discretion to States it will be weakened to the
point of being useless.


V.3      International Maritime Organisation
         Christopher Young, Senior Legal Officer, Legal Affairs and External Relations
         Division, IMO


Since the Castor and Prestige incidents, the IMO has been developing solutions which are
concrete, workable and commonly accepted. Aim is to assist those who must handle complex
place-of-refuge situations and to coordinate the actions of the various parties involved so that
the best decision can be made in emergency circumstances.

The IMO has therefore just adopted a Resolution, during its Assembly early December 2003,
which contains a set of guidelines from the operational safety point of view (they have been
prepared by the NAV sub-Committee of the Maritime Safety Committee):

-     Guidance for action required of masters and/or salvors of ships.

-     Guidance for actions expected of Coastal States: they are required to establish procedures
      by which to act on requests for assistance. Maritime/port authorities must make an
      objective analysis of the advantages and disadvantages of allowing a ship in, taking into
      account a long list of analysis factors. There is no obligation for the coastal State to grant
      access but it must weigh all the factors and risks in a balanced manner and give shelter
      whenever reasonably possible.

The Legal Committee has been considering the subject from the international law point of
view : main legal issues, which are not covered by the new Guidelines, relate to: rights of
Coastal States, liability, compensation, insurance, etc.

There are several international conventions which are relevant to places of refuge situations
(e.g. Salvage Convention, CLC, IOPC etc.), but the Legal Committee is waiting for the results
of the CMI enquiry before it can establish whether or not there are shortcomings in the current
international system of liability and compensation. For instance, the following cases are not
clear and may constitute potential gaps:



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-     Does a State violate its international obligations if it allows a ship to enter a place of
      refuge without proper insurance ?
-     Is a State, which gives refuge to a ship in distress, liable if its insurance cover fails?
-     If the shipowner loses the right to limit its liability as a result of CLC, does the State,
      which gives refuge to a ship in distress, have any liability?
-     Does the current regime permit the payment of fixed costs?

Moreover, there is a need, first of all, to assess the effect of implementation of the new
Guidelines, before any further consideration is given to the development of a mandatory
instrument on places of refuge.


VI.      The need for a legal framework on places of refuge
         Dirk Sterckx, MEP, Rapporteur of the European Parliament report on improving
         safety at sea in response to the Prestige accident


Directive 2002/59 on reporting and monitoring (for which D. Sterckx was Rapporteur)
acknowledges that pollution, such as the one arising from the Prestige accident, can be
prevented/controlled by giving refuge to a ship in distress in a place (not necessarily port) of
refuge.

To deal with incidents you need salvage tools/equipment to provide assistance to ships in
difficulty at sea as well as procedures and a management structure (chain of command and
independent authority, without political functions, such as the UK SOSREP or the French
Préfet maritime) to make appropriate decisions. These ideas will be included in the report of
the EP’s Temporary Committee on maritime safety (for which D. Sterckx is again
Rapporteur).

It is fundamental that Member States implement existing legislation. Following the Prestige
disaster, the political reaction was image-driven and focus was on publishing new measures
(e.g. phasing out of single hull tankers), rather than applying existing rules (e.g. Member
States have not made much progress concerning the designation of places of refuge).

Given the global dimension of maritime transport, issues must be addressed and solved in an
international context. The Commission should become a member of the International
Maritime Organisation so that it could put more weight on the negotiations.

The question of liability is a difficult one; for instance for the Prestige it is difficult to
determine who is responsible for the accident. Moreover, the amendment put forward by J.
Dhaene, which relates to the financial liability of an authority which refuses access to a ship
in distress, is very questionable because there may be a very valid reason for not providing
refuge to the vessel.

It is in any case necessary to give incentives to ports to accommodate ships in distress : the
Parliament is looking forward to the results of the work of the IMO and of the European
Commission on the development of a compensation regime for places of refuge.




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VII.   Accommodating a ship in distress : rights and responsibilities of port authorities
       Prof. Dr. Eric Van Hooydonk, Chairman of the European Institute of Maritime and
       Transport Law, Member of the CMI International Sub-Committee on Places of Refuge


The basic question is whether a ship in distress has the right to enter a port of refuge, or,
alternatively, whether a coastal state and/or port authority has the right to refuse a ship in
distress.

According to a first theory ships in distress always have the right to enter any port of refuge
whatsoever regardless of the cause of the distress. This is an old rule of international
customary law. However, it does not conform to the modern practice of states, with ships in
distress frequently being denied entry, and moreover, the theory of absolute right of entry
ignores the environmental risks.

A second theory, according to which coastal states or port authorities have an absolute right to
refuse ships in distress and that in consequence there is no right of access whatsoever is
supported only by a very small minority of international law specialists, who put forward a
number of legal arguments that seem more convincing than they really are. The fact that a
state may in certain circumstances refuse access, does not necessarily imply that this right of
access does not exist, but may also be due to the relative nature of the right. The theory of an
absolute right to refuse ships in distress leads to what can be termed a “not in my front pond
syndrome”, analogous to the “not in my backyard syndrome”, with states all too easily driving
ships in distress away, without having adequate regard for the interests of neighbouring states
and coasts.

A third view of the problem takes the line that there must always be a process of weighing the
various elements against one another followed by an ad hoc decision. There is no question of
an absolute right of access, nor of an absolute right of refusal, but rather one of a balance
between the interests, rights, and/or risks concerned.

A balanced approach is, as such, much to be preferred. Nonetheless this approach is not
entirely free of risk. In practice the third approach often differs little from the second, because
when the weighing off of rights, interests and risks is done by the authorities of the coastal
state, the coastal state can hardly be regarded as being neutral in the matter. Moreover, there is
a real danger that the decision maker will lack the necessary nautical expertise, be subject to
political pressure, fail to give grounds for his decision and neglect to take account of regional
and international interests.

The speaker takes the view that a preferable approach would be based on a more sophisticated
version of the third theory, entailing the addition of two components: the assumption that
access exists and principles of good decision- making. The authorities should only be
authorized to refuse a request for access when it has been shown that there are insuperable
objections. Here the burden of proof must be borne by the authorities themselves, so that the
right of every ship to access may be presumed.

The question of to what extent port and other authorities are liable for incorrect decisions to
grant or refuse access, was recently examined by the CMI by means of a questionnaire sent to
national maritime law associations. At present there are no international arrangements in this



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respect. Moreover there is usually no specific national legislation either. National tort law
appears to lead to highly divergent solutions.

If ships in distress are to gain easier access to places of refuge, port authorities and all the
other authorities concerned must be able to count on receiving specific, reasonable and
justifiable compensation. Here it is a matter of liability arrangements (LLMC, CLC, Fund,
HNS, Bunker), financial securities and insurance considerations.

The objective should be to provide additional encouragement for admitting ships in distress. It
is not unthinkable that ports could be legally regarded as salvors. In essence a port is a vital
link in every salvage operation. If there is no port to bring a ship in distress to, a salvor is not
able to accomplish his task. Although the port is not the subcontractor of the salvage company
in legal terms, it is in reality precisely that. Seen from this point of view, it appears to be
justifiable to grant a port which has admitted a ship in distress – either voluntarily or under
constraint – a salvage reward, or at least part of the normal salvage fee awarded to the salvors.
This would encourage ports to make a more positive assessment of the requests of ships in
distress or their salvors to obtain a place of refuge, and this in consequence could help reduce
accidents and environmental catastrophes.

In the opinion of the speaker, an international convention on places of refuge and ships in
distress is both essential and attainable. A convention of this sort would among other things
set out principles regarding the right of access, decision-making methods, the civil and
criminal liability of authorities, the compensation of losses accruing to ports, the allocation of
salvage rewards and requests for financial securities. At present the political climate is in
favour of establishing such regulations as European public opinion has been mobilized in the
wake of the recent shipping disasters. Mere Guidelines and contingency plans are in the
author’s view inadequate.

The traditional reluctance of national states to curtail their sovereignty in matters of this kind
could be overcome by granting certain benefits, including coherent provisions for
compensation and salvage rewards for ports. An international convention on places of refuge
could indeed lead to a win-win situation for all concerned.


VIII. The way forward in Europe


VIII.1. European Commission
        Gilles Bergot, Maritime Safety Unit, Directorate General Transport and Energy


Directive 2002/59 imposes on Member States to develop plans to accommodate ships in
distress by 5 February 2004. Following the Prestige accident, the European Council, in
December 2002 called for an accelerated implementation of this Directive by July 2003. The
Parliament, in its Resolution of September 2003, also insisted on the importance to implement
these provisions as early as possible.

The Commission has been monitoring and coordinating the preparation of national plans by
Member States. It organised two meetings with governments’ experts in January and May



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2003. It also urged Member States to send information about their plans. The quality of
replies varies from country to country:
- either Member States already have a system in operation,
- or they are just starting to implement new measures / to adapt their existing system,
- or they are lagging behind.

The Commission has therefore decided to start an evaluation campaign, with the aim to assess
the emergency response procedures in place in Member States, and has already visited the
maritime authorities of 6 countries.

Member States need in particular to comply with article 20 of the Directive. National plans
must contain the following elements:
- procedural aspects: the competent authorities need a clear framework to assess the
   requests of ships in distress;
- geographical element: designation of places (not necessarily ports) of refuge.

Regional cooperation is an essential part of the Directive. It will be facilitated by EMSA.

Compensation and liability are fundamental correlatives to the development of
accommodation plans : the Directive requests the Commission to investigate these issues
further and to come up with proposals. The Commission will give effect to this request in
September 2004.


VIII.2. European Maritime Safety Agency
        Willem de Ruiter, Director of EMSA


The accommodation of ships in distress touches upon complex legal is sues. But what is more
important is to take the right decision to limit the damage, be it environmental or economical.

The argument that places of refuge should be designated only when rules on compensation are
clarified does not stand because there already exist four conventions which address this issue
adequately (CLC, IOPC, Bunkers, HNS). It is fundamental to ratify them so they can enter
into force.

Member States have to put in place systems to accommodate ships in distress, which must
take into account the following principles:
- one authority must have overriding competence to assess requests
- places of refuge must be published
- all scenarios must be envisaged to respond to incidents in an optimal way.

It is the role of EMSA, in cooperation with the Commission, to make sure that Member States
do their work.




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IX.      Panel discussion with representatives of European port authorities

         Chaired by Prof. Dr. Willy Winkelmans, Chairman of the Institute of Transport and
         Maritime Management Antwerp (ITMMA)

         With :
         Capt. Mark Andrews, Harbour Master, Milford Haven Port Authority
         Capt. Jacques Loncke, Nautical Head, MRCC Flanders
         Capt. Knud Erik Möller, Harbour Master, Port of Aarhus
         Capt. Richard Gabriele, Harbour Master, Malta Maritime Authority
         Capt. Hans-Jürgen Roos, Head, Seaports Communications, Shipping and Nautic
         Division, and “DA Maritime Security” HB Senator (Ministry) for Economy and Ports,
         Bremen


Five Harbour Masters and representatives of Nautical Authorities, who have been confronted
with a great number of requests from ships in need of assistance, shared their experience on
how they dealt with difficult cases. Main points which emerged from the discussion were :

-     each incident is different ; the decision has to be taken on a case by case and risk
      assessment basis. The final decision should be made by technicians, not by politicians;

-     disasters like the Prestige are, unfortunately, the most visible episodes related to the
      accommodation of ships in distress ; but one should bear in mind that in most cases all
      works out well ;

-     one main difficulty in the accommodation of ships in distress relates to the fact that in
      many cases the master/owner of the ship does not forward accurate information (i.e. about
      the damage or the cargo) to the competent authorities, which makes the salvage operations
      even more difficult;

-     it often happens that, once the vessel has been given refuge, it is abandoned by its owner
      (e.g. when the vessel has suffered too serious damage and that the reparation costs are
      higher than the actual value of the vessel);

-     ship insurance should be mandatory for all vessels to ensure that the port recovers its
      costs.




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X.      Conclusions of the workshop

X.1.    Legal conclusions
        Prof. Dr. Eric Van Hooydonk, Chairman of the European Institute of Maritime and
        Transport Law, Member of the CMI International Sub-Committee on Places of Refuge


-    The Prestige accident had created public awareness on current shortcomings in terms of
     maritime safety and triggered much political attention at EU level. There is now a general
     feeling that legal solutions are needed. The European Parliament is a driving force behind
     maritime safety legislation.

-    Risk assessment, on a case by case basis, is a central element in the accommodation of a
     ship in distress, as it is acknowledged in the Spanish methodology to select places of
     refuge, the SOSREP system in the UK and the new IMO guidelines.

-    Many speakers confirmed that an adequate legal framework does contribute to a better
     approach. The UK is an excellent example. Whether the existing international framework
     for compensation is sufficient, remains to be seen. At least for some important issues such
     as liability of public authorities, harmonised rules are completely lacking. Whether prompt
     and full compensation for port authorities is available under current maritime law, is
     questionable as well. Some speakers find that the possibility of an international
     convention on places of refuge should be explored further, while others expressed doubts.
     The CMI has identified an number of relevant legal issues and will assess further to what
     extent additional international rules are needed.

-    All the speakers agreed that decisions on the admittance of ships in distress must be taken
     on the basis of independent technical expertise. The IMO Guidelines provide a tool for an
     objective analysis of each case.

-    The EU Monitoring Directive incites EU Member States to put in place specific
     contingency plans. The European Commission will contribute to the assessment of
     existing maritime conventions on compensation and liability and their effectiveness. The
     Commission will come up with proposals, in the course of 2004, on compensation and
     liability of ports, which are necessary correlatives to the designation of safe havens. In
     cooperation with EMSA, the Commission aims at developing a European network of
     places of refuge.




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X.2.   Policy conclusions
       David Whitehead, Chairman of ESPO


-   Improving maritime safety is a task of all players involved in the maritime sector: Port
    State Control, classification societies, Flag State, shipowners etc. A lot is outside of
    control of port authorities and the responsibility is sometimes transferred to the port too
    easily (cf. for instance, when ships are abandoned by their owners after being given
    shelter in a port or also the recent disproportionate proposal of the European Parliament to
    impose criminal sanctions on port authorities). Insurance should be made compulsory for
    all ships, to ensure that owners take up their responsibility towards their vessels.

-   Accidents such as the Prestige unfortunately give very negative publicity to maritime
    transport, which, overall, is however a rather safe mode. One should bear in mind that 2
    billion tonnes of cargo are shipped in the EU and most of it reaches its destination
    smoothly and safely.

-   “Ports of refuge” is a “heat of the moment” issue. Assessing the request of a ship in
    distress is all the more difficult for the competent authorities since such a decision is
    subject to tight deadlines and various pressures from all sides (from the owner of the ship
    and its captain, the harbour master of the potential port of refuge, the local or central
    authorities etc.). To be able to react adequately, efficient procedures are needed to deal
    with incidents. The UK system according to which a single person, the SOSREP, has the
    overriding competence to make the final decision provides a good framework to deal with
    these pressures. For the system to work, this person must have sufficient authority and
    must get support and trust from ports, to which he/she may impose to give refuge to a ship
    in distress.

-   In terms of legislation, the issue of “places of refuge” is already adequately addressed by
    the EU Directive 2002/59 establishing a Community vessel traffic monitoring and
    information system. Some aspects of this Directive may need to be further developed but,
    overall, it provides for a reasonable and balanced system : it recognises the difficult
    position of a competent authority when confronted with a ship in distress seeking
    accommodation in its port and highlights the need to base the final decision on both the
    interests of the ship and those of the port. It is now fundamental to implement existing
    provisions on maritime safety, be it EU legislation (Erika I and II packages) or
    international regulations (e.g. HNS and Bunker Oil Conventions).




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