Imagine for a moment that you are the Harbour Master of a busy international port. You receive a call from the Salvage Master of a stricken vessel. The vessel is under tow but on fire and listing badly. She has heavy fuel oil on board and containers many of which contain toxic waste and chemicals. Would you allow the vessel to enter? What happens if she sinks and becomes a wreck? What if heavy fuel oil leaks? What are the consequences of refusing?
The best known example of this dilemma is perhaps the Prestige incident in 2002. That incident involved a spill of 20 million gallons of oil polluting the French and Spanish coastlines. The case spawned dozens of legal actions in the UK, France and Spain. The key point however is that access to a port of refuge following the casualty could have significantly limited the pollution, or at least that was the view of the Spanish salvage master sent to assess the casualty at the time. We know of course that access was denied. The ship was ordered out to sea where she broke up and sank.
Since the Prestige, ports and states are seemingly more reluctant to allow damaged ships to enter. Why would one allow in something that might sink, obstruct the port, require an expensive wreck removal and possibly also cause pollution? It is human nature to want to avoid being responsible for those potential outcomes.
The recent Sri Lankan Supreme Court judgment in X Press Pearl does not help. The fact that the Sri Lankan Court ignored the international conventions allowing a ship owner to limit liability can only lead insurers to the conclusion that putting up an unlimited Guarantee in exchange for access to a port of refuge is a dangerous thing to do.
The port of refuge issue remains topical. As I write this the Wan Hai 503 which caught fire off the coast of India in June is still searching for a port of refuge. India refused to allow the vessel to enter its ports. The latest news is that a port of refuge may have been found in the Middle East. The Marie Maersk caught fire off Liberia on 11 August. It is also seeking to find a safe port to deal with transhipment of damaged boxes. The same issue occurred with the Maersk Frankfurt fire in 2004. That vessel also struggled to find a port of refuge.
Whilst the fires on these ships were all extinguished, the issue of finding a port or place of refuge remains hugely problematic. We are regularly seeing ships at sea for months whilst lengthy negotiations take place to find a port of refuge. That leads to increased risks. There is also the cost of getting to the port and the costs involved at the port all of which fall on insurers.
The IMO has considered this issue before. However, to date no steps have been take to oblige States to provide refuge to stricken vessels. The IMO has issued “Guidelines” which are intended for use when a ship is in need of assistance but the safety of life is not involved. International law of course permits States to take whatever action they deem appropriate to protect their coastlines via UNCLOS and the Salvage Convention.
The wider question remains how States can be persuaded to be more accommodative when it comes to requests for refuge? It seems that the current legal framework where a ship owner and its insurers can limit liability is not helpful. Indeed, we have seen that the Sri Lankan government paid no attention to limitation.
Until such time as there is a change, the mission to find a port of refuge is a critical part of any crisis management plan following a casualty. The consequences of making the wrong decisions are huge. The Prestige and the X Press Pearl are both examples of seemingly manageable casualties where things went wrong. In the Prestige requests made for a port of refuge in France and Spain were denied. In the X Press Pearl, the Sri Lankan authorities were blamed even though the Court directed the owners and insurers to pay US$1 billion.
It is of course impossible to say that prompt action will always avert disaster but having a detailed crisis management plan and taking immediate advice at the outset is the best way to manage any crisis. In many cases, detailed prompt engagement with the authorities in potential ports of refuge can make a huge difference. This requires good communications between all parties – owners, insurers, salvors and port authorities to ensure that the necessary assurances can be provided to enable the vessel to get the assistance it needs and minimise the losses to all concerned.