Arnold Witte, President, International Salvage Union

March 2007, stormy conditions off the coast of southern Spain and the reefer Sierra Nava is in difficulty. Difficulty which quickly leads to a serious situation as the ship is driven ashore and grounds off the port of Algeciras.

Recognising the danger, the owners engage an ISU salvor under the most commonly utilised salvage contract – Lloyd’s Open Form – and rapidly a salvage master and tugs are despatched and arrive on scene. One of the first actions after assessing the condition of the casualty is to remove the bunker fuel. A precaution should re-floating the vessel prove impossible but also a necessary action to lighten the ship prior to a re-floating attempt.

With the salvage equipment in place, the salvors did indeed pump out 350 tonnes of bunker fuel. The re-floating operation was a success, disaster was averted and the incident received relatively little attention. How different it could have been if the Sierra Nava had broken up in the surf and 350 tonnes of fuel oil had spilled into the Mediterranean and on to the coastline.

All agencies involved in protecting the marine environment recognise that heavy fuel oil is the one of the most persistent and difficult pollutants to clean up effectively. Even a small bunker spill represents a serious challenge, can trigger a major counter pollution operation and lead to expensive claims.

Keeping bunkers and other pollutants in the ship but, if necessary, removing them, is the aim of members of the International Salvage Union. During 2007 alone its members were involved in rendering salvage services worldwide to 282 vessels laden with over 1.1 million tonnes of pollutants. This figure included 109,266 tonnes of bunkers. Statistics for ISU pollution prevention go back to 1994. And in the 14 years to end-2007, ISU salvors rendered salvage services to vessels laden with over 14 million tonnes of pollutants – which included over a million tonnes of bunkers.

The importance of this work is in renewed focus as the International Maritime Organisation’s Bunker Spill Convention will enter into force on 21 November this year, following accession to the convention by Sierra Leone. That accession fulfilled the entry-into-force-conditions of this new international instrument, which needed 18 states, including five states with ships whose gross tonnage is not less than one million, to ratify the convention.

The new Convention is of great significance to salvors as, increasingly, shore authorities regard any vessel carrying intermediate or heavy fuel oil as an “oil tanker” in the strictest sense.

There was controversy in 2001 when IMO member governments decided to exclude from the Bunker Spills Convention the responder immunity provisions that had been included in earlier pollution compensation conventions, although IMO member governments were encouraged to incorporate a suitable resolution on responder immunity in their domestic laws, failure to provide protection from prosecution for the salvor within this key Convention itself rang alarm bells.

Salvage cannot be regarded as a risk-free undertaking. Despite the salvor’s best endeavours, pollution is an ever-present possibility. Too many variables, not least the weather, can impact the outcome. A storm could, for example, have broken up the Sierra Nava before removal of the bunker fuel. Given the “uncontrollables”, it is impossible to perform salvage under a regime of strict liability.

And the Bunker Spills Convention, therefore, remains a key concern for salvors – who often work in jurisdictions with a reputation for hard line attitudes in marine casualty oil spill situations. Moreover, a number of IMO member states were quite open about not wishing to grant responder immunity to salvors precisely because they wanted to be able to pursue the salvor should a salvage operation go wrong.

Salvors do not seek complete immunity from the consequences of their actions. They recognise that, like all forms of commerce, they should be held to account for a fault for which they are properly responsible. But they do seek protection from a growing tendency to impose strict criminal and civil liability for pollution damage.

ISU members were advised to be fully aware of which states took a position against responder immunity at the Diplomatic Conference adopting the Convention, and subsequently fail to include the IMO Responder Immunity Resolution in the domestic law. Each casualty situation will be judged on its merits by salvors. But undoubtedly they will consider carefully the protection of their own interests when weighing their response to a casualty in the territorial waters of one of these countries that will not grant responder immunity.

Coastal states rely on the readiness and willingness of commercial salvors to intervene in marine casualty situations. In many cases salvors offer the best hope of preventing a catastrophic spill. To jeopardise the potential to prevent pollution is short sighted. ISU members are right to be cautious and concerned at their exposure under the new Bunker Spills Convention. And that is to the great disadvantage of coastal states and could undermine the protection of the marine environment.