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Wednesday, September 26, 2018

Places of refuge and UK policy addressed at London seminar

Recent incidents have again highlighted the problems raised by ships in distress looking for sheltered havens. At a seminar organised on 30 March by the University of Southampton’s Institute of Maritime Law (IML) and the British Maritime Law Association (BMLA),  Robin Middleton, the Secretary of State’s Representative  (SOSREP), outlined the UK’s policy regarding places of refuge, while Richard Shaw, Senior Fellow at the IML,outlined the two well established principles of international law that are now brought into conflict. 

First, said Shaw, comes the right of a ship in distress to seek shelter, which has been recognised for centuries, and the principles of which can be found in modern instruments such as the USCG Marine Safety Manual.  Second, and in conflict with this, are more modern principles involving the duty to protect the marine environment which are now of paramount importance. This duty also includes the requirement for states not to send their ‘environmental problems’ to other states which is in breach of UN Convention of the Law of the Sea (UNCLOS).

Turning to the UK Government perspective, Robin Middleton, the Secretary of State’s Representative  (SOSREP), explained that this position had been created as part of the UK Government's response to Lord Donaldson's Report.   The SOSREP role is to oversee and if necessary to intervene and exercise “ultimate command and control”, acting in the overriding interest of the UK in salvage operations in UK waters involving vessels where there is significant risk of pollution.

Middleton, outlining the UK’s policy on places of refuge, explained the overriding considerations were those of safety and risk to human life, both of those on board and those who may find themselves near enough to be affected by it.  However it was also recognised that the need for refuge could well require a casualty to move into a sheltered bay or port.   Mr Middleton told the audience that the so-called “UK secret list” does not exist. The UK “list” follows IMO guidelines but is non-specific and non-exhaustive. 

Middleton believes there can be no pre-determined ranking of places of refuge, because of the transient and varied nature of each incident and the time parameters affecting the value of a location as a place of refuge. However the “agony of the moment” choice of a place of refuge will have behind it a formal system of prior assessment.

Shaw also addressed the legal implications of the IMO Guidelines on Places of Refuge (adopted in December 2003) which provide governments, shipmasters, companies and salvors with a framework enabling them to respond effectively and in such a way that their efforts are complementary.

Shaw also discussed the  May 2003 Protocol which would, as adopted, establish a Supplementary Fund, to provide compensation over and above that currently available under the 1992 CLC / FC regime. This Supplementary Fund’s entry into force will create a third tier of compensation for pollution damage and provide sufficient funds for “reasonable” claims. Shaw emphasised that the concept of “reasonable claims” is an important issue that needs to be addressed.

For example, if a coastal state wishes to make a claim, it is necessary to prove that the claim is “reasonable”. However the question of “reasonableness” in this context has yet to be defined. It is necessary to examine how the incident could have been handled, which includes looking at the action taken by the master, salvor and coastal state.  If it is proven that a government acted in a negligent manner, the cost may end up on the doorstep of the coastal state.  

 The seminar, chaired by Sir Anthony Evans, Vice President of the BMLA, also included a presentation by  Mike Lacey, Special Adviser to the International Salvage Union on ‘The Salvor’s Perspective’

Contact: Sally Woulfe