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Cradle to Graving-Dock?: the Promises and Limits of Modern Shipbreaking Reform

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Cradle to Graving-Dock?: the Promises and Limits of Modern Shipbreaking Reform Cradle to Graving-Dock?: The Promises and Limits of Modern Shipbreaking Reform Rebecca Prentiss Pskowski1 Table of Contents I. INTRODUCTION: THE STRANGE CASE OF THE RONGDHONU, EX RAINBOW WARRIOR II ................................................................................................................................................ 2 II. DEVELOPMENT OF A TWENTY-FIRST CENTURY SCRAP MARKET .................................... 5 III. THE FLAGGING PROBLEM ....................................................................................................... 9 A. Flags of Convenience ...................................................................................................................... 9 B. End-of-Life Flags .......................................................................................................................... 10 IV. LEGAL REGIMES ....................................................................................................................... 11 A. The Basel Convention .................................................................................................................. 11 B. The Basel Ban Amendment ......................................................................................................... 13 C. The ILO Guidelines on Shipbreaking ........................................................................................ 14 D. The Hong Kong Convention ........................................................................................................ 14 E. The European Waste Shipping Regulation ................................................................................ 16 F. The European Ship Recycling Regulation ................................................................................. 17 V. FIVE APPROACHES TO THE SHIPBREAKING PUZZLE ........................................................ 19 A. Port State Control: The HarriEr .................................................................................................. 20 B. Prosecution by the Importing State: The NortH SEa ProducEr ................................................. 22 C. Piercing the Flag State Veil: The Seatrade Case ....................................................................... 25 D. Direct Tort Actions: The Eurus London .................................................................................... 31 E. Corporate Responsibility: An Extralegal Solution? ................................................................. 33 VI. CONCLUSIONS ............................................................................................................................ 36 1 This article, prepared for the 2020 Admiralty Law Institute, is an updated and expanded version of an article forthcoming at 34 OCEAN YEARBOOK 489, and is provided with the consent of that publication. The author is a civilian attorney-advisor to the United States Coast Guard, but the views herein are her own, and should not be construed as reflecting the views of the Coast Guard or of the U.S. Department of Homeland Security. The author would like to thank Professor Robert Force for his invaluable advice and support in the formulation and drafting of this project. 1 Cradle to Graving-Dock? ALI 2020 Rebecca P. Pskowski Cradle, [ ] the timber frame which is constructed round the hull of a ship while she is on the launching ways in the course of being built. When launched, the cradle slides down the ways with the ship.2 Graving Dock, . The term originates from the old practice of graving a ship’s bottom, i.e., burning off the accumulated weed and paying it over with tar. Today, a graving dock is synonymous with a dry-dock.3 From the perspective of international regulation, the aim should be the setting of, implementation of and controlled compliance with high international standards for the entire life cycle of ships, in other words, from “cradle to grave” or from “makers to breakers.”4 I. INTRODUCTION: THE STRANGE CASE OF THE RONGDHONU, EX RAINBOW WARRIOR II Greenpeace, the international environmental organization, has been from its inception a seagoing outfit.5 Its vessels’ exploits include protests of nuclear tests, arctic drilling, and whaling.6 In the late 1990s, Greenpeace activists began documenting the occupational and environmental conditions of shipbreaking yards in Asia.7 In Alang, India, at open-air beaches where massive cargo vessels were disassembled with hand-held acetylene torches, Greenpeace representatives saw workers removing asbestos with their bare hands and toxic materials dumped into the sea or on nearby agricultural lands.8 Greenpeace began targeting European shipowners who sent their decommissioned vessels to Indian beaches, where the ships were scrapped under environmental and labor conditions that would never be tolerated in a European country.9 In 2003, the three-masted schooner Rainbow Warrior II, Greenpeace’s flagship, anchored off Alang beach, in protest.10 2 OXFORD COMPANION TO SHIPS & THE SEA 211 (Peter Kemp, ed. 1976). 3 Id. at 351 4 Nele Matz-Lück, Safe and Sound Scrapping of “Rusty Buckets”?: The 2009 Hong Kong Ship Recycling Convention, 19 REV. EUR. COMMUNITY & INT’L ENVTL. L. 95, 96 (2010). 5 The organization’s name was coined to christen a boat, which precursor organization Don’t Make a Wave intended to sail in protest of nuclear tests in Alaska. See FRANK ZELKO, MAKE IT A GREEN PEACE!: THE RISE OF COUNTERCULTURAL ENVIRONMENTALISM 69-70 (2013). 6 Id. 7 Patrizia Heidegger, The Role of the NGO Shipbreaking Platform for Making Ship Recycling Clean and Safe, INT’L CONFERENCE ON SHIP RECYCLING, WORLD MAR. U., Apr. 8, 2013, https://issuu.com/worldmaritimeuniversity/docs/heidegger_-_the_role_of_the_ngo_shi. See also WILLIAM LANGEWIESCHE, THE OUTLAW SEA 212-16 (2004) (describing origins of Greenpeace shipbreaking campaign); Peter Rousmaniere & Nikhil Raj, Shipbreaking in the Developing World: Problems and Prospects, 13 INT’L J. OCCUPATIONAL & ENVTL. HEALTH 359 (2007). 8 Heidegger, supra note 7. 9 Id.; LANGEWIESCHE, supra note 7, at 215-16 (describing targeting of shipowner P&O Nedlloyd by Greenpeace). 10 Matthew McClearn, Dark Voyage, CANADIAN BUS., Oct. 10, 2005, at 64. See also GREENPEACE, PLAYING HIDE AND SEEK: HOW THE SHIPPING INDUSTRY, PROTECTED BY FLAGS OF CONVENIENCE, DUMPS TOXIC WASTE ON SHIPBREAKING BEACHES 22 (Dec. 2003) (“The SV [] Rainbow Warrior of Greenpeace has been in Indian Waters and surroundings from 7 November 2003 until the beginning of December. Shipbreaking was one of the core issues. 2 Cradle to Graving-Dock? ALI 2020 Rebecca P. Pskowski The fledgling movement to clean up shipbreaking was galvanized by the case of the Clemenceau, a French aircraft carrier decommissioned in 1997. France’s efforts to scrap the vessel, containing some 130 tons of asbestos, resulted in an international legal and public relations battle. After Turkey and Greece refused import, an attempted export to India was aborted at the last minute, the vessel called back to France, and ultimately sent to the United Kingdom for responsible disposal.11 The activists who had fought to keep the Clemenceau from the beaching yards of the Subcontinent, Greenpeace chief among them, formally joined forces in 2005, incorporating as the NGO Shipbreaking Platform, united to fight for responsible ship recycling practices, inimically opposed to the practice of beaching.12 It was therefore somewhat of a surprise when, on a high tide in November, 2018, a certain three- masted vessel was driven onto the beach of Chattogram, Bangladesh, to be cut apart on the intertidal zone.13 The Rongdhonu, ex Rainbow Warrior II, had since 2013 sailed as a charity hospital ship, providing health care in remote coastal areas of the Bay of Bengal.14 Before her reincarnation as a floating hospital, the Rainbow Warrior II sailed as the Greenpeace flagship for 22 years.15 When Greenpeace retired her in 2011 and donated her to Friendship NGO for re-commissioning as a hospital ship, the transfer agreement provided Greenpeace a veto over any demolition plan, requiring the Rhongdhou’s former owner to approve the method of her eventual disposal. And yet, there the anti-beaching campaign ship was, in November, 2018, on the beach in Chattogram, for every satellite that passed overhead to see. In a press release, republished on the Maritime Executive news website, cash buyer GMS, a major player in the shipbreaking markets of the Subcontinent, publicly congratulated Greenpeace for reconsidering its long-held opposition to beaching: “GMS is pleased to see [Greenpeace] has finally accepted the fact that responsible recycling in the Subcontinent is the most prudent option for shipowners worldwide... GMS congratulates both Greenpeace and Friendship for actively participating in the green transformation of the ship recycling industry in Bangladesh.”16 The next day, November 15, Greenpeace published a mea culpa on its website: When we transferred the ship to Friendship in 2011 we retained the right of veto over any final disposal plan ... We should have consulted our partners in the NGO Shipbreaking Platform ... we did not. No excuse ... Upon realising our mistake, we began work to try and find an alternative way for the ship to be decommissioned, but this was not possible. The ship was beached and readied to be cut up ... Greenpeace does not believe that breaking ships apart on tidal beaches is green. Going Although it has been difficult to work, a lot of information was gathered on the actual practise of the arrival and
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