Shelter from the Storm – the Problem of Places of Refuge for Ships in Distress and Proposals to Remedy the Problem Anthony Morrison University of Wollongong
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University of Wollongong Research Online University of Wollongong Thesis Collection University of Wollongong Thesis Collections 2011 Shelter from the Storm – the problem of places of refuge for ships in distress and proposals to remedy the problem Anthony Morrison University of Wollongong Recommended Citation Morrison, Anthony, Shelter from the Storm – the problem of places of refuge for ships in distress and proposals to remedy the problem, Doctor of Philosopy thesis, University of Wollongong, Faculty of Law, University of Wollongong, 2011. http://ro.uow.edu.au/theses/3218 Research Online is the open access institutional repository for the University of Wollongong. For further information contact Manager Repository Services: [email protected]. Shelter from the Storm –the problem of places of refuge for ships in distress and proposals to remedy the problem. A thesis submitted in fulfilment of the requirements for the award of the degree of DOCTOR OF PHILOSOPHY from UNIVERSITY OF WOLLONGONG by ANTHONY MORRISON, BA(Sydney), LLM (Hons) (Sydney), Grad Dip Env Law (Sydney), Dip Shipping Law (London) AUSTRALIAN NATIONAL CENTRE FOR OCEAN RESOURCES AND SECURITY (ANCORS) FACULTY OF LAW 2011 iii CERTIFICATION I, Anthony Morrison, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy in the Australian National Centre for Ocean Resources and Security, Faculty of Law, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Anthony Morrison 20 December 2010 v ABSTRACT When a ship gets into difficulties, one of the main options of an owner or master is to seek to put into sheltered waters where the difficulties can be remedied or minimised before proceeding on the voyage. This place is referred to as a ‘Place of Refuge’. Since 1999, there have been three major incidents involving ships, laden with crude oil and other hazardous cargoes, requesting and being refused access to places of refuge. In two of these cases, involving the Erika and the Prestige, the ships subsequently sank and caused severe pollution damage. In the third, involving the Castor, a disaster was narrowly avoided. The primary aims of this thesis are to address the issues that arose from the three incidents, to analyse the two proposals to deal with these issues, namely, voluntary Guidelines issued by the International Maritime Organisation (IMO) and the proposal by the Comite Maritime International (CMI) for a discrete convention on places of refuge and assess their adequacy to deal with future incidents. In doing so, the thesis assesses the manner in which the problem of places of refuge is treated, first, under international law; second, on the international level, by international bodies such as IMO, CMI and shipping industry bodies; third, at the national level, by Australia, Canada and the United Kingdom; and fourth, at the regional level, by the European Union and regional arrangements for the North Sea and the Baltic Sea. Any proposal for reform in the area of places of refuge must inevitably encounter and attempt to balance two firmly entrenched and largely incompatible positions. Shipping interests involved in the success of the marine adventure have a strong interest in preserving the vessel through timely intervention in a place of refuge. Coastal States have an equally strong interest in preserving their national waters and territory from pollution damage and their populations from danger from hazardous cargoes. To date, the task of trying to balance these varying interests, either through existing laws and institutions or through the solutions proposed by the IMO and CMI, has proved to be difficult. Additionally, there are a number of factors which could influence the way in which coastal States respond to requests for access. These include the age and condition of the world fleet; the failure of flag State control, port State control and classification societies to detect substandard shipping; and the failure of current international conventions to cover all aspects of possible damage to places of refuge. The conclusion of the thesis is that there is, currently, no complete answer to the problem of places of refuge since the necessary balance of interests is absent in the current proposed solutions. This balance must be found and factors influencing the decision of coastal States to grant access must be addressed. The problem of places of refuge is likely to persist until this occurs. vii TABLE OF CONTENTS ABSTRACT v TABLE OF CONTENTS vii ACRONYMS xv ACKNOWLEDGEMENTS xix INTRODUCTION 1 Hypothesis 4 Aims and Objectives of the Thesis 4 Methodology of the Thesis 5 Structure of the Thesis 6 Significance and Contribution to Knowledge in the Field 9 CHAPTER 1 - THE PROBLEM OF PLACES OF REFUGE 11 Introduction 11 1. What is a Place of Refuge? 11 2. Customary Rights of Ships in Distress 15 3. Changes to the Custom of Granting Refuge to Ships in Distress 17 Changes to the Shipping Industry 20 Growth of Environmental Consciousness and the Development of International Environmental law 25 Changes to International Maritime Law 26 Changes to Salvage Law and the Salvage Industry 28 4. Erika, Castor and Prestige 32 The Erika 33 The Castor 38 The Prestige 40 Effects of the Erika, Castor and Prestige on Places of Refuge 42 5. Interests Involved in the Places of Refuge Problem 44 Interests Concerned with Completion of Marine Adventure 44 Charterers 44 viii Shipowners 46 Cargo owners 47 Insurers of the ship 48 Cargo Insurers 49 Master and Crew 49 Salvors 50 Interests Concerned with Preservation of the Marine and Coastal Environment 51 Coastal States 51 Environmental Pressure Groups 53 Media 53 Shipping Industry Regulators 53 Flag States 54 Port States 55 Classification Societies 57 Conclusion 58 CHAPTER 2 - GENERAL ACCESS TO PORTS IN INTERNATIONAL LAW 59 Introduction 59 1. Sovereignty over Internal Waters 59 2. Access to Ports 62 Bilateral Treaties 62 Multilateral Conventions 64 Convention and Statute on the International Regime of Maritime Ports, Geneva, 1923 65 United Nations Convention on the Law of the Sea, 1982 68 Other Multilateral Conventions 69 3. Evidence of Custom from Judicial Decisions and National Legislation 71 Decisions of International Tribunals 71 National Legislation and Decisions of National Courts 73 Australia 73 United States 75 Canada 77 United Kingdom 78 European Union 79 4. Opinions of International Jurists 80 Conclusion 81 ix CHAPTER 3 – ACCESS TO PORTS BY SHIPS IN DISTRESS IN INTERNATIONAL LAW 83 Introduction 83 1. What is meant by ‘distress’? 84 2. Evidence of Custom from Early Trade Relations between Maritime States 85 3. Evidence of Custom from Bilateral Treaties 89 Bilateral Treaties of Great Britain and the United States of America 90 Bilateral Treaties of the former British Empire 100 Bilateral Treaties of other States 104 Effect of Bilateral Treaties on Customary International Law 104 4. Ships in Distress under Multilateral Conventions 107 Convention and Statute on the International Regime of Maritime Ports, Geneva, 1923 107 United Nations Convention on the Law of the Sea, 1982 111 International Convention on Salvage, 1989 116 International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990 118 International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1973 118 5. Evidence of Custom from Judicial Decisions 119 Decisions of International Arbitral Bodies 120 Decisions of the United States Courts 125 Decisions of the English Courts 129 Decisions of the Canadian Courts 131 Decisions of the Netherlands Courts 134 Decisions of the Irish Courts 136 6. State Practice 138 Conclusion 140 x CHAPTER 4 – INTERNATIONAL RESPONSES TO PLACES OF REFUGE PROBLEM 141 Introduction 141 1. Places of Refuge as an International Problem 142 2. Action on Places of Refuge by the International Maritime Organisation 144 3. IMO Guidelines on Places of Refuge for Ships in Need of Assistance 160 Structure of Guidelines 162 General Provisions 162 Actions required by the Master and/or Salvors 168 Actions expected of Coastal States 170 4. Actions of the IMO on Places of Refuge after Adoption of IMO Guidelines 177 5. Assessment of the IMO Guidelines 179 Benefits 179 Disadvantages 182 6. Action on Places of Refuge by other International Organisations 185 Comite Maritime International (CMI) 185 International Association of Ports and Harbors (IAPH) 189 Shipping Industry Associations 191 Conclusion 194 CHAPTER 5 – NATIONAL RESPONSES TO PLACES OF REFUGE PROBLEM 197 Introduction 197 1. Australia 198 Maritime Jurisdiction in Australia 198 Legislation Affecting Places of Refuge 200 Commonwealth Legislation 200 State and Northern Territory Legislation 210 Administrative Arrangements Relating to Places of Refuge 212 National Plan 213 xi Guidelines on Places of Refuge 214 Queensland 214 New South Wales 216 Western Australia 217 National Guidelines 217 Introductory Provisions and Definitions 218 Requests for Place of Refuge 223 Decision Making Process 223 Management Issues 224 Incidents involving Places of Refuge 226 Daishowa Maru 226 Iron Baron 226 Eurydice 227 Wunma 229 Assessment of the Australian Position on Places of Refuge 230 2. Canada 232 Maritime Jurisdiction 232 Treatment of Places of Refuge – National Places of Refuge Contingency Plan (PORCP) 233 Introductory Provisions 233 Authority for Directing Ships 234 Responsibility for Decisions and Decision Making 235 Decision Making Process 238 International Arrangements with the United States 239 Assessment of the Canadian Position on Places of Refuge 242 3. The United Kingdom 245 Legislation 247 Harbours, Docks and Piers Clauses Act 1847 247 Dangerous Vessels Act 1985 247 Merchant Shipping Act 1995 249 Command and Control 252 International Arrangements 256 Incidents Involving Places of Refuge 257 Assessment of the United Kingdom Position on Places of Refuge 259 Conclusion 261 xii CHAPTER 6 - REGIONAL RESPONSES TO PLACES OF REFUGE PROBLEM 263 Introduction 263 Regional Arrangements 263 1.