Places of Refuge for Ships in Distress

Anthony P. Morrison, PhD in Law, University of Wollongong, is a Visiting Fellow at the Australian National Centre for Ocean Resources and Security (ANCORS). He has extensive experience in marine, insurance and environmental law and in ports policy and administration.

• FOREWORDACKNOWLEDGEMENTSTABLE OF CONTENTS ACRONYMS CHAPTER 1 INTRODUCTION AND OVERVIEW CHAPTER 2 THE PLACES OF REFUGE PROBLEM Introduction What is a Place of Refuge?Customary Rights of Ships in Distress Changes to the Custom of Granting Refuge to Ships in Distress Changes to the Shipping Industry Growth of Environmental Consciousness and the Development of International Environmental law Changes to International Maritime Law Changes to Salvage Law and the Salvage Industry Erika, Castor and Prestige The Erika The Castor The Prestige Effects of the Erika, Castor and Prestige on Places of Refuge Interests Involved in the Places of Refuge Problem Interests Concerned with Completion of Marine Adventure CharterersShipownersCargo ownersInsurers of the shipCargo InsurersMaster and CrewSalvorsInterests Concerned with Preservation of the Marine and Coastal EnvironmentCoastal States Environmental Pressure GroupsMedia Shipping Industry Regulators Flag StatesPort States Classification Societies Conclusion CHAPTER 3 GENERAL ACCESS TO PORTS IN INTERNATIONAL LAWIntroductionSovereignty over Internal WatersAccess to Ports Bilateral Treaties Multilateral Conventions Convention and Statute on the International Regime of Maritime Ports, Geneva, 1923 United Nations Convention on the Law of the Sea, 1982 Other Multilateral Conventions Evidence of Custom from Judicial Decisions and National Legislation Decisions of International Tribunals National Legislation and Decisions of National Courts Australia United States Canada United Kingdom European Union Opinions of International Jurists Conclusion CHAPTER 4 ACCESS TO PORTS BY SHIPS IN DISTRESS IN INTERNATIONAL LAW Introduction Evidence of Custom from Early Trade Relations between Maritime States Evidence of Custom from Bilateral Treaties Bilateral Treaties of Great Britain and the United States of America Bilateral Treaties of the former British Empire Bilateral Treaties of other States Effect of Bilateral Treaties on Customary International Law Ships in Distress under Multilateral Conventions Convention and Statute on the International Regime of Maritime Ports, Geneva, 1923United Nations Convention on the Law of the Sea, 1982 International Convention on Salvage, 1989 International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1973Evidence of Custom from Judicial Decisions Decisions of International Arbitral Bodies Decisions of the United States Courts Decisions of the Canadian Courts Decisions of the Netherlands Courts Decisions of the Irish Courts State Practice Conclusion CHAPTER 5 INTERNATIONAL RESPONSES TO PLACES OF REFUGE PROBLEMIntroduction Places of Refuge as an International Problem Action on Places of Refuge by the International Maritime Organisation IMO Guidelines on Places of Refuge for Ships in Need of Assistance Structure of Guidelines General Provisions Actions required by the Master and/or Salvors Actions expected of Coastal States Actions of the IMO on Places of Refuge after Adoption of IMO Guidelines Assessment of the IMO Guidelines Benefits Disadvantages Action on Places of Refuge by other International Organisations Comite Maritime International (CMI) International Association of Ports and Harbors (IAPH) Shipping Industry Associations Conclusion CHAPTER 6 NATIONAL RESPONSES TO PLACES OF REFUGE PROBLEMIntroductionThe United Kingdom Legislation Harbours, Docks and Piers Clauses Act 1847Dangerous Vessels Act 1985Merchant Shipping Act 1995 Command and ControlInternational ArrangementsIncidents Involving Places of RefugeAssessment of the United Kingdom Position on Places of Refuge Australia Maritime Jurisdiction in Australia Legislation Affecting Places of RefugeCommonwealth LegislationState and Northern Territory LegislationAdministrative Arrangements Relating to Places of RefugeNational PlanState Guidelines on Places of Refuge Queensland New South WalesWestern Australia National Guidelines Introductory Provisions and DefinitionsRequests for Place of RefugeDecision Making ProcessManagement Issues Incidents involving Places of Refuge Daishowa MaruIron BaronEurydiceWunma Assessment of the Australian Position on Places of Refuge Canada Maritime Jurisdiction Treatment of Places of Refuge – National Places of Refuge Contingency Plan (PORCP)Introductory ProvisionsAuthority for Directing ShipsResponsibility for Decisions and Decision MakingDecision Making Process International ArrangementsCanada/United StatesCanada/FranceCanada/Denmark Assessment of the Canadian Position on Places of Refuge United StatesFederal Legislation on Oil Pollution and Places of RefugeState Legislation on Oil Pollution and Places of RefugeNational Contingency PlanGuidelines on Places of RefugeRegional and Area GuidelinesNational GuidelinesIntroductionAppendix 1- Incident-Specific Places of Refuge Decision-Making ProcessAppendix 2 – Potential StakeholdersAppendix 3 – Process for Pre-identification of Potential Places of RefugeUnited States Coast Guard Places of Refuge PolicyCommon Features and Differences between NRT Guidelines and USCG PolicyInternational ArrangementsUnited States/CanadaUnited States/MexicoIncidents Involving Places of RefugeM/V Tong ChengAssessment of the United States Position on Places of Refuge.ConclusionCHAPTER 7 REGIONAL RESPONSES TO PLACES OF REFUGE PROBLEMIntroduction Regional Arrangements The Regional Approach Concept European Union European Union Approach to Places of Refuge Other Regional Arrangements Bonn Agreement Places of Refuge under the Bonn Agreement Helsinki Convention Places of Refuge under the Helsinki Convention Assessment of the Role of Regional Arrangements Conclusion CHAPTER 8 A CONVENTION ON PLACES OF REFUGE AS A SOLUTION? Introduction Potential of a Discrete Convention CMI Draft Instrument Contents of Draft Instrument Preamble Definitions Object and Purpose Legal Obligation to Grant Access to a Place of Refuge Guarantees Immunity from Liability for Granting Access and Liability for Refusing Access Reasonable Conduct Plans to Accommodate Ships Seeking Assistance Identification of Competent Authority Assessment of the CMI Draft Instrument Benefits Disadvantages Conclusion CHAPTER 9 FACTORS AFFECTING A RESPONSE TO PLACES OF REFUGE PROBLEMIntroduction Improved Industry Performance Double Hull and Ship Replacement The United States InitiativesInternational Maritime Organisation InitiativesThe European Union InitiativesUnilateral Action by other Coastal States Ship Design Effect of Double Hulls Replacement and Ship Design on Places of Refuge Improved Industry Regulation Flag State Control Effect on Places of Refuge of Actions to Improve Flag State Control Port State Control Effect on Places of Refuge of Actions to Improve Port State Control Classification Societies Effect on Places of Refuge of Actions to Improve Classification Societies Issues of Liability, Compensation and Limitation Subject Coverage Liability for Damage Compensation for ‘Pure Economic Loss’ Compensation for Damage to the Environment Per Se Defences Available under International Conventions Limitation of Liability Amending IMO Guidelines Incentives for Coastal States to Use IMO Guidelines Liability for Cross Boundary Environmental Harm International Obligations to Protect the Environment Conclusion CHAPTER 10 CONCLUSIONS BIBLIOGRAPHYINDEX

"Places of Refuge for Ships in Distress makes a major contribution to the literature. It is a thoroughly researched book that explores much current law and practice related to places of refuge and that thoughtfully evaluates proposals for change."-John E. Noyes, California Western School of Law