KAIUN: NOVEMBER, 2008
Arnold Witte, President, International Salvage Union
Over the past four decades, the 20 largest marine oil spills released some three million tonnes of pollutants into the sea. Three of these events – involving the tankers Exxon Valdez, Erika and Prestige – resulted in spills totalling around 120,000 tonnes of crude oil, with costs in clean-up and compensation running into billions of dollars.
In contrast, member salvors of the International Salvage Union (ISU) recover over 400,000 tonnes of crude oil annually from tanker casualties. Since 1994 (when the ISU began its annual statistical survey), our members have recovered over 14 million tonnes of oils and chemicals from around 3,000 casualties. This includes over 11 million tonnes of cargo oil and one million tonnes of bunkers.
The tanker industry has been successful in reducing the incidence of accidents and spills in recent decades. Significant events (defined as over 5,000 barrels each) have fallen from more than 20 annually in the 1970s to fewer than five annually in the current decade. Nevertheless, around 20 salvage operations involving laden tankers occur annually, with salvors intervening to prevent or minimise pollution. In doing so, they save shipowners and their liability insurers billions of dollars. At the same time they are defending the reputation and international standing of the tanker industry.
Clearly, in a world displaying zero tolerance of marine spills, there is no room for complacency when it comes to pollution prevention. Last year, for example, the number of tanker salvage operations performed by ISU salvors rose from 18 to 24, including a VLCC laden with 270,000 tonnes of crude oil. In addition, the number of salvage operations involving ship-to-ship transfers of cargo or bunkers doubled in 2007, totalling 42. The largest STS involved a tanker laden with 89,000 tonnes of crude oil.
When considering future prospects for marine casualty prevention and regulatory action, the significant improvements already achieved in maritime safety and spill avoidance are unlikely to be replicated. The regulators have entered the territory of diminishing returns. Naturally, it is impossible to eradicate all risks – even when zero tolerance is the common expectation. Accidents will continue to occur due to natural perils, human error and occasional mechanical failures. As a result, every vessel can be seen as a potential casualty, capable of threatening life, property and the environment should things go wrong.
New risks emerge
New risks emerge over time. In the 1970s, the advent of VLCCs and ULCCs resulted in a dramatic shift in the character and scale of risk (although such risk analysis is by no means straightforward, as larger vessels reduce the number of loading and discharge operations).
Today, shifts in the pattern of oil transportation are having a profound impact on risk exposure. One obvious example is the dramatic increase in oil exports from Russia and former states of the Soviet Union. This has led to significant growth in the number of tanker movements, with implications for neighbouring Coastal States, including those bordering international waterways, such as the Turkish Straits and Dover Strait.
Governments are sensitive to these issues. The rapid rise in tanker traffic through the Bosporus and Dardanelles is a source of political controversy between Turkey and Russia. Turkish concerns are shared by the British and French Governments. A recent report to the UK’s Maritime and Coastguard Agency (MCA) noted that very heavy fuel oil movements through the Dover Strait now total around 30 million tonnes annually – “with a significant proportion originating in Russia and former Soviet Union countries”.
Residual fuel oil exports from Russia rose from 12.5 million tonnes in 1998 to 22.5 million tonnes in 2003. One outcome, in the case of the UK, is a recommendation that there should be a rethink, at governmental level, of current policy on the deployment of Emergency Towing Vessels, or ETVs. The recent report commented: “ETVs are conveniently placed at the four ‘corners’ of the UK, with central areas on the eastern and western side covered by tugs and other vessels (e.g. through Liverpool and Aberdeen). However, as speed of response is more critical in a very heavy fuel oil spill, the MCA should review these locations”.
The ISU’s roles include fostering greater understanding of 21st Century approaches to salvage and spill prevention. One example is the modern role of ETVs – standby tugs – that provide a guaranteed measure of security for busy waters and vulnerable coastlines. Another example is best practice in command and control. Here, the ISU regards the UK’s SOSREP (Secretary of State’s Representative) model as by far the most successful system devised to date. The SOSREP approach has been extraordinarily effective in promoting streamlined, timely decision-making in challenging situations.
The need to protect the marine environment places a premium on the salvor’s ability to intervene and prevent pollution when catastrophe threatens. There are cases, however, where salvors have been denied the opportunity to use their “best endeavours” to prevent a spill.
In December 2003 the International Maritime Organization (IMO) adopted Resolution A.949(23), “Guidelines on places of refuge for ships in need of assistance”. This followed the loss of the tanker Prestige off the Spanish coast in the preceding year – an event ending in a pollution disaster. A major reason for this was the Spanish refusal to grant a place of refuge for this badly damaged tanker. The vessel was ordered out into the Winter Atlantic and, inevitably, broke up just a few days later.
This catastrophe proved to be a seminal event in the area of casualty response. Yet the IMO had decided to take action on this front before the Prestige spill in November 2002. Places of refuge had been on the IMO’s agenda since the loss of the laden tanker Erika in late 1999. This issue grew in profile 12 months later, when the tanker Castor developed structural problems in the Mediterranean. This casualty became a “leper of the sea”, with several Coastal States refusing to offer shelter. The salvors needed a refuge, in order to perform a ship-to-ship transfer in conditions of relative safety.
The IMO’s December 2003 refuge guidelines make an attempt to reconcile two conflicting issues. On the one hand, the best way to reduce a pollution threat may be to transfer cargo and bunkers and this requires a place of refuge, to minimise the spill risk. However, allowing a casualty to approach the shore may endanger the environment, the coastline, fisheries and other economic interests. Not surprisingly, local communities and shore authorities are likely to oppose such a course of action.
Decisions on whether or not to grant refuge are essentially political in nature. They must be taken on a case-by-case basis. Following the Prestige, however, there is more awareness that the instinctive response – to order a ship out – might well aggravate the problem and may even produce a “worst-case” event: the loss of the tanker and catastrophic pollution.
The IMO has urged Coastal States to implement the refuge Guidelines. States are expected to identify safe havens and prepare to use them in emergency situations. The European Union, for its part, requires member states to list places of refuge. Most have fought shy of doing so, at least in a public sense, due to the obvious sensitivities. Some have responded by declaring their entire coastline as a refuge. No coastal community is singled out. Equally, no coastal community is left out!
Distilling best practice
There have been a number of developments since the IMO’s refuge guidelines were adopted in 2003. New initiatives include the International Salvage Union’s decision to draft broader-based guidelines, on Marine Casualty Management (the MCM Guidelines). This document now exists in first draft. It sets out a comprehensive statement of best practice when responding to ship casualties. The ISU Guidelines will be finalised in the early New Year. They will address the matter of places of refuge but will also include other response issues, such as command and control and responder immunity.
The ISU welcomed the IMO’s refuge guidelines but cautioned, at the time, that guidance for shore authorities and Masters is required for all types of casualty situation, not just those requiring refuge. In addition (and for obvious reasons) more weight should be given to salvage considerations. In preparing the guidelines, the ISU’s main objective is to produce a draft appropriate for IMO consideration. It is hoped that the IMO will eventually adopt the ISU guidance as a successor to the current, more narrowly focused guidelines on refuge.
Matters took a fresh turn in October 2007. The IMO’s Maritime Safety Committee approved “Guidelines on the control of ships in an emergency”. Once again, the ISU welcomed the initiative, but noted that the guidance was too general in character. The new Guidelines on the control of ships in an emergency are aimed at governments, shore authorities, Masters, owners and salvors. The aim was to provide “a framework of authority”, within which the parties are expected to operate. These guidelines stress the need for a clear chain of command in an emergency.
The October 2007 guidelines declare: “At no time should the Master be prohibited from taking action which, in the Master’s judgement, is required to protect the lives of crew and passengers or others on board”. The term “others” could relate to a salvage team, in circumstances where a damaged casualty is ordered out in hostile weather, having been refused shelter by a Coastal State.
There are other provisions of direct significance to the salvor. For example, the guidelines emphasise that a State intending to use its intervention powers should ensure that the Master, owner and salvage team are briefed clearly on the shore command structure and are made aware of exactly what degree of responsibility remains with them, together with any limitations placed on their freedom of action.
These guidelines state that the casualty’s Master should cooperate with the Salvage Master “to the maximum extent”. The guidelines also recognise the salvor’s need for reliable information concerning ship, cargo and the nature of the emergency. The importance of ready access to the casualty is also underlined.
The IMO adopted a valuable additional set of guidelines in 2007. Unfortunately, however, these guidelines are also narrowly focused and fail to take full account of the need for integrated response.
Salvors may have an excellent track record in saving property and preventing spills, but they do not achieve these successes by acting in isolation. The outcome depends on effective cooperation between many parties, including the authorities ashore. In some circumstances, this may involve granting access to a port or other place of refuge.
A good working relationship between the salvor and shore agencies is a major success factor. This is why it is so odd that there are still no IMO-sponsored international arrangements that integrate all core casualty management functions. This should be a top priority for the IMO and EU, given the ever-present risk of catastrophic pollution in all world regions.
The ISU will launch the MCM Guidelines in the New Year. The objective is to promote a timely, fully integrated response by salvors, crew, owners, coastal state (or states) and national response agencies.
Under The Salvage Convention, 1989, and the Lloyd’s Open Form salvage contract, the salvor is required to use his best endeavours to recover property and prevent or minimise pollution. In our view, the spirit of the best endeavours commitment (as opposed to any legal interpretation) should apply to all parties involved in casualty response. With this in mind, the ISU Guidelines will set out specific examples of best practice, applying to all key response parties.
In the salvor’s case, best endeavours should mean working closely with others to arrive at the best environmental option in the shortest possible time. As for the shipowner, best endeavours requires the immediate and frank disclosure of the casualty’s status. In addition, shore authorities should put in place special arrangements to ensure that the salvage team and equipment enter the country without delay and that the Salvage Master boards the casualty at the earliest opportunity.
These integrated provisions are bound together by a strong focus on spill prevention through timely salvage intervention. They are not concerned with clean-up, as this is already covered comprehensively by the IMO’s existing instruments.
The ISU’s MCM Guidelines address many elements of response, including:
· Contingency planning and joint training: coastguards, shore-based response agencies, port authorities and salvors should train and exercise together, mobilising the vessels, equipment and personnel likely to be available in the early phase of an emergency.
· Response inventories: should include all salvage assets held at local, regional, national and international level (including assets held by neighbouring Coastal States). Inventories should list sheltered anchorages, emergency facilities within ports (including facilities for the reception of wastes) and sources of special expertise, for tasks such as decontamination.
· Facilitation measures: to “fast-track” salvage teams and equipment through Customs. There should be a framework for rapid entry, logistical support and early boarding of the casualty by the Salvage Master.
· Casualty risk assessment: the IMO’s present guidelines on refuge already deal with this important issue. However, there is a need for more weight to be given to salvage considerations when assessing the implications of ship type, cargo carried, degree of damage to the vessel, the availability (or otherwise) of main engines and, of course, the casualty’s proximity to the coast.
· Command and control: the UK’s SOSREP model is cited as the outstanding example of best practice in this area. The SOSREP combines an understanding of salvage with an extraordinary degree of delegated political authority. This allows decision-making to focus on just two individuals: SOSREP and Salvage Master.
· Responder immunity: lack of responder immunity places a Coastal State at greater risk. It discourages the salvor from intervening in worst case situations – the very circumstances in which he is most needed. The guidelines will emphasise the negative consequences of any prosecution of salvors or seizure of salvage assets. This matter is about to become more significant, with the November entry into force of the Bunker Spills Convention (which grants no responder immunity).
· Places of refuge: the ISU guidelines will state that the best chance of preventing pollution is to identify and then apply the best environmental option. In extreme situations, this could mean allowing a damaged, leaking vessel into a safe haven, in the face of fierce local and regional opposition. Ideally, there should be a wide appreciation – pre-event – of the circumstances in which regional and national interest has primacy over local concerns.
Key role of ports
Port emergency plans should be coordinated with national response systems, as required under Article 3 of the International Convention on Oil Pollution Preparedness, Response and Cooperation, 1990. Port authorities are the “maritime interface” between the response offshore and the shoreside efforts of many agencies, including local government, emergency services, civil defence, wildlife protection teams and water, environmental protection and fisheries agencies. Ports, in particular, play a central role in shore reception and the provision of emergency cargo discharge facilities.
Port authorities take a central role in many casualty response situations. The spirit of “best endeavours” should act as a strong motivator for port authorities and all involved in the response effort. These parties share the common desire to avoid massive economic dislocation, environmental damage and disruption to the life and well-being of coastal communities.