International Maritime Organisation (IMO) adopted two resolutions in November, 2003 on the issue of “ Places of Refuge “ for ships in distress. When any ship is in distress condition during her voyage , she needs a place of refuge in time to save the whole adventure.
The “Resolution A. 949 (23) Guidelines” on place of refuge for ships in need of assistance is related to the ship which needs assistance where the safety of life is not involved. Where safety of life is involved, the provisions of Maritime search and Rescue convention on 1979 ( The 1979 convention was adopted in Hamburg to develop an international SAR plan , so that , it will not be prime factor to determine as to where the accident occurs. The rescue of persons in distress at sea will be co-ordinated by a SAR organisation and, when necessary, with the cooperation between the neighbouring SAR organisation) will continue.
The “ Resolution Guideline” provides that where a ship has suffered a damage, it will be in order to prevent the damage and environment pollution at the earliest. The cargo and bunkers should be removed for repairing of the ship in a place of refuge but bringing the vessel into a place of refuge near the coastal state may hamper the Coastal State both economically and environment point of view. The local authorities and inhabitants may not allow to carry out such repairing operation. Hence, it may be a political decision to allow the vessel at the Place of refuge on case to case basis unless the environment issue is amicably resolved between the ship and the Coastal State.
The second “ Resolution A 950(23) Maritime Assistance Services (MAS) recommends to develop maritime assistance service (MAS) in all coastal states which will collect various reports, consultations and notifications in a number of IMO instruments; monitoring the situation of the ship to ascertain whether the ship is in need of assistance in her distress condition, exchange information between the Ship and the Coastal state and with the Salvors engaged for maritime salvage if the Coastal State desire to monitor all the operation The monitoring of all such operation is necessary to prevent the risk of oil pollution .
History of place of refuge
The concept of providing shelter (refuge) to the ship in distress was first discussed at IMO in the year 1980, when the legal committee was in the process of examining the draft provisions of the International Convention on Salvage which was adopted in the year 1989 ( The International Convention on Salvage was adopted in London on 28th April 1989 as treaty which replaced the Brussels convention on assistance and salvage at sea ) . Initially it was suggested that the States should provide shelter to the distress vessel at their ports. Although few delegators accepted the proposal but few of them expressed their doubt to impose a “Public rule” in a “Private law” convention. Moreover, the interest of the Coastal State should be considered while adopting such provisions.
The issue was further discussed when a working group of IMO’s MSC ( The Maritime Safety Committee (MSC) – The Maritime Safety Committee deals with maritime safety and maritime security which falls within the scope of IMO) was established in December 2000 to examine post Erika ( Erika was a tanker vessel built in 1975 which sank off the coast of France in 1999 , causing a major environment disaster) safety related issue.
The another issue on the Castor incident was surfaced when the particular tanker vessel was towed around the Mediterranean Sea after being damaged for over a month as she could not find a proper place for successful lightering operation. The matter was seriously discussed in IMO when it was suggested for a global consideration to render proper assistance and facilities to the affected vessel, when she will be in distress condition at sea.
The matter was further discussed by the MSC in May 2001 where it was stated that although the term “ Port of Refuge” is commonly used in the shipping practice but such term was never been appeared in any of the relevant convention like UNCLOS ( United Nation Conference on the Law of the Sea), SOLAS ( Safety of Life at Sea), OPRC( International convention on Oil pollution Preparedness, Response and Cooperation) Moreover, the term “ Port” is very restrictive to provide adequate facilities and services to the ship in distress especially the Oil tanker. Hence, it was suggested by the IMO secretary to other IMO committees to use the wider term as “ Places of Refuge”
Hurdles faced to adopt “ Places of Refuge”
When a vessel carrying liquid bulk cargo is damaged, the coastal water of any state do not like to provide shelter to the vessel in their coastal area to avoid environmental pollution and destruction of marine lives. However, the refusal may result heavy casualty to the human lives.
Secondly, it was also discussed whether the Coastal States are bound to accommodate the distress vessel under any international law to avoid impending danger by undertaking repairing after lighterage or Ship to Ship transfer in case of Oil tanker. International Law refers to the Right of States to regulate entry of vessel in their ports as per UNCLOS Article no 2 which reads as under
Article 2
- The Sovereignty of a coastal state extends, beyond its land territory and internal waters and, in the case of an archipelagic state, its archipelagic waters, to an adjacent belt of sea described as the territorial sea.
- This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil.
- The sovereignty over the territorial sea is exercised subject to this Convention and to other rules of international law.
The right to enter of a foreign ship into the port of coastal state due to force majeure is not regulated by UNCLOS .but it is an international practice to allow the vessel to take shelter atleast for saving the human lives. However, the right of a coastal state to protect its coastline from marine pollution is well accepted in the International Law.
If we examine Revised Chapter v of SOLAS (1st July 2002)-, it is found that the Owner, the Charterer, or the Company operating the vessel will not prevent the master of the ship from taking decision to seek shelter to avoid disaster whereas SOLAS Article IV provides that the ships which are not subject to the convention at the commencement of their voyage shall not be permitted to deviate from their intended voyage due to heavy weather or any other case of force majeure. In such cases, the Government will ensure to make arrangement for distress communication and coordination in their area of responsibility for the rescue of distress persons .at sea round their coasts.
In view of the above, It is essential for IMO to develop a suitable guideline for the ship in distress with the mutual understanding between the Coastal State and the Government of the particular country to maintain proper and equitable balance between the rights and interests of the Coastal State so that the distress ship may get her shelter to save the cargo, bunker and precious human lives.
