The role of the state on the safety of maritime navigation and protection
of maritime environment
B. Činčurak, L.L.B.
J. J. Strossmayer University in Osijek, Faculty of Law Osijek, Osijek, Croatia
A. Vasilj, Ph. D.
J. J. Strossmayer University in Osijek, Faculty of Law Osijek, Osijek, Croatia
ABSTRACT: The improvement of safety, security and efficiency of maritime traffic as well as the prevention
of pollution are among the main concerns of scientists around the world. Maritime safety and security are imperatives to the interests of any nation whose borders include coastal waters and ports. Increasing economic
activity throughout the world means more ships, more cargo, and more traffic in ports, coastal areas and regional waterways. To ensure safety, to prevent human injury or loss of life, and to avoid damage to the marine
environment, and to property a number of conventions has been adopted. Pollution of sea could be caused by
harmful effects from the land, air, oil pipelines damages, during marine scientific research, dumping etc.
However, the biggest threat comes from vessels. Emissions of oil, water ballast, petroleum, and wastewater
are the most common and dangerous. Important roles in the fight against water pollution, especially in preventing environmental catastrophes have international organizations and national legislations. However, international rules do not regulate all situations and problems. Therefore, national states have important role in
preventing maritime safety.
1 INTRODUCTION
Modern development of international maritime law
in part regulating safety at the sea was inspired by
safety of human life and protection of marine environment.
Safety, in terms of protecting not only the health
and lives of people at sea (both crews and passengers) but also the environment, is a fundamental objective of sea transport policy.
Safety of ships and navigation as well as protection of human life and property depend on technical
equipment of the ship, safety management, education, training and skills of crew, organization of navigation, state of other objects (waterways, ports,
berths, cargo gears), efficient supervision of inspection, authority and administration.
Ships in operation today are subject to a vast
range of regulations and standards covering every
aspect of ship construction and operation. A number
of incidents over the years have led to improvements
in safety requirements.
Business activities in sea shipping cause environmental pollution and are considered environmental hazard from the aspect of safety. Pollution of the
marine environment means the introduction by man,
directly or indirectly, of substances or energy into
the marine environment, which results or is likely to
result in such damaging effects as harm to living re-
sources and marine life, hazards to human health, interference to marine activities, including fishing and
other legitimate uses of the sea, damage of quality
for use of sea water and reduction of facilities.
Main sources of marine pollution are: land-based
activities, vessel pollution, pollution from platforms,
from air, dumping, off-shore activities. Concerning
pollution from vessels (shipping) it may be result of
normal operation of ships or from accidents.
“The basic principles of the protection and
preservation of the marine environment are the principle of prevention, precautionary principle, “polluter pays” principle and the principle of sustainable
development.” (Seršić, M. 2003, p. 237)
There is a global awareness that safety and environmental protection issues are of public interest.
The role of international community (UN and other
international organizations e.g. IMO, OECD, UNCITRAL as well as the EU at the regional European
level) in legal regulating of these issues is significant. The purpose of the conventions is to raise the
level of standards regulating technical and operational aspects of ships in order to reduce safety and
environmental protection risks. Legal norms regulating pollution can be divided to: a) norms for preventing pollution, b) norms on combating and limiting pollution and c) repressive norms.
2 INTERNATIONAL LEGAL FRAMEWORK OF
SAFETY AT THE SEA, PREVENTION OF
POLLUTION FROM SHIPS, RIGHTS AND
OBLIGATIONS OF THE STATE
Vessels can pollute water in many ways: spills of oil
and other chemicals from tankers, ballast water, discharge of cargo remains, sewage are the most important. Ships also produce noise that disturbs natural wildlife and exhaust emissions are source of air
pollution. Pollution from vessels (shipping) can be
result of normal operation of ships or from maritime
casualties.
Most frequent causes of maritime accidents are:
human error, improper operation and maintenance of
equipment, ships age, improper spare parts, the
company itself, the management, etc. The major
causes for human factor error are: lack of standards,
no proper knowledge and experience no plans for
emergency situations, lack of information, unclear
instructions.
With regard to norms and position after pollution
has been made, vessel can be submitted to authority
of costal state, flag state or port state. Each of these
state have certain rights and obligation in application
of environment protection regulation.
Numerous international treaties regulating these
issues were adopted; in this place only relevant for
the purpose of this paper will be shown.
2.1 The United Nations Convention on the Law of
the Sea
The most important global international treaty regulating law of the sea in general but also protection
and preservation of marine environment is the United Nations Convention on the Law of the Sea (UNCLOS) concluded in 1982, came into force in 1994.
To date, 158 countries and the European Community
have joined in the Convention.
Provisions on protection and preservation of marine environment are included in Part XII of the
Convention. It does not contain detailed rules or
specific standards; its provision lay down only general principles and rules, establishing a global
framework of obligations, responsibilities and powers of states in all maters of marine environment protection (Seršić, M. 2003, p. 235). Therefore, UNCLOS needs to be complemented with further treaty
law structure provided by the IMO conventions and
protocols in order to ensure that obligations to implement the extremely precise technical rules and
standards contained in such conventions and protocols become binding in accordance with international law.
The Convention lays down, first of all, the fundamental obligation of all States to protect and preserve the marine environment (Article 192 of the
UNCLOS). It further urges all States to cooperate on
a global and regional basis in formulating rules and
standards and otherwise take measures for the same
purpose.
Coastal States are empowered to enforce their national standards and anti-pollution measures within
their territorial sea. Every coastal State is granted jurisdiction for the protection and preservation of the
marine environment of its exclusive economic zone
(EEZ). Such jurisdiction allows coastal States to
control, prevent and reduce marine pollution from
dumping, land-based sources or seabed activities
subject to national jurisdiction, or from or through
the atmosphere. (see Articles: 56, 60, 80 and 208 of
the UNCOS). “States shall adopt laws and regulations for the prevention, reduction and control of
pollution of the marine environment from vessels
flying their flag or of their registry. Such laws and
regulations shall at least have the same effect as that
of generally accepted international rules and standards established through the competent international
organization or general diplomatic conference.” (Article 211, paragraph 2 of the UNCLOS). Coastal
States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for
the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. “Coastal States,
for the purpose of enforcement as provided for in
section 6, may in respect of their EEZ adopt laws
and regulations for the prevention, reduction and
control of pollution from vessels conforming to and
giving effect to generally accepted international
rules and standards established through the competent international organization or general diplomatic
conference.” (Article 211, paragraph 5 of the UNCLOS).
According to Article 220, paragraph 1 of the
UNCLOS, when a vessel is voluntarily within a port
or at an off-shore terminal of a costal state, that State
may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations
adopted in accordance with the Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the
territorial sea or the EEZ of that State.
“Where there is clear objective evidence that a
vessel navigating in the EEZ or the territorial sea of
a State has, in the EEZ, committed a violation referred to in paragraph 3 resulting in a discharge
causing major damage or threat of major damage to
the coastline or related interests of the coastal State,
or to any resources of its territorial sea or EEZ, that
State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including
detention of the vessel, in accordance with its laws”
(Article 220, paragraph 6 of the UNCLOS).
On the other hand, it is the duty of the “flag
State”, the State where a ship is registered and
whose flag it flies, to enforce the rules adopted for
the control of marine pollution from vessels, irrespective of where a violation occurs. This serves as a
safeguard for the enforcement of international rules,
particularly in waters beyond the national jurisdiction of the coastal State, i.e., on the high seas.
“However, practice has shown that system of
measures of the flag states which derives from such
rules is often very inefficient.” (Fabijanić Gagro, S.
2008, p. 415.) Reasons are e. g.: states with flags of
convenience ("open registries"), insufficient interest
of the flag state to start the procedure and penalize
act that happened in far away or in the high seas
where “no one is damaged”.
Every state has jurisdiction and control in administrative, technical and social matters over ships flying its flag (about duties of the flag State on the high
seas, see Article 94 of the UNCLOS. Every State
shall take such measures for ships flying its flag as
are necessary to ensure safety at sea with regard to:
the construction, equipment and seaworthiness of
ships; the manning of ships, labour conditions and
the training of crews, taking into account the applicable international instruments; the use of signals,
the maintenance of communications and the prevention of collisions.
Furthermore, the Convention gives enforcement
powers to the “port State”, or the State where a ship
is destined. “When a vessel is voluntarily within a
port or at an off-shore terminal of a State, that State
may undertake investigations and, where the evidence so warrants, institute proceedings in respect of
any discharge from that vessel outside the internal
waters, territorial sea or exclusive economic zone of
that State in violation of applicable international
rules and standards established through the competent international organization or general diplomatic
conference.” (Article 218, paragraph 1 of the UNCLOS).
According to Article 219 of the UNCLOS, states
which, upon request or on their own initiative, have
ascertained that a vessel within one of their ports or
at one of their off-shore terminals is in violation of
applicable international rules and standards relating
to seaworthiness of vessels and thereby threatens
damage to the marine environment shall, as far as
practicable, take administrative measures to prevent
the vessel from sailing. Such States may permit the
vessel to proceed only to the nearest appropriate repair yard and, upon removal of the causes of the violation, shall permit the vessel to continue immediately.
To ensure proper implementation of this regulations in practice, port states must have capable personnel and adequate equipment in ports (this will
cause financial burden for some states) in addition to
harmonize rules and procedures in different states.
2.2 The international Convention for the Safety of
Life at the Sea (SOLAS
The most important of all treaties dealing with maritime safety is the International Convention for the
Safety of Life at the Sea (SOLAS), adopted in 1974
and came into effect in 1980. It covers various aspects of ship safety, including construction, fire protection, life-saving appliances, radio communications, safety of navigation, the carriage of cargos and
safety measures for high speed craft.
The main objective of the SOLAS Convention is
to specify minimum standards for the construction,
equipment and operation of ships, compatible with
their safety. Flag States are responsible for ensuring
that ships under their flag comply with its requirements, and a number of certificates are prescribed in
the Convention as proof that this has been done.
Control provisions also allow Contracting Governments to inspect ships of other Contracting States if
there are clear grounds for believing that the ship
and its equipment do not substantially comply with
the requirements of the Convention - this procedure
is known as port state control.
The provisions of chapter regulating safety of
navigation are mainly of an operational nature and
apply to all ships on all voyages. This is in contrast
to the Convention as a whole, which only applies to
ships of a certain size engaged on international voyages. The chapter also includes a general obligation
for Contracting Governments to ensure that all ships
are sufficiently and efficiently manned from a safety
point of view. Requirements for the fitting of radar
and other navigational aids are also contained in this
chapter.
2.3 ISM CODE
In 1993, IMO adopted the International Management Code for the Safe Operation of Ships and for
Pollution Prevention (the ISM Code), that became
mandatory in 1998. The Code became applicable,
under chapter IX of the International Convention for
the Safety of Life at Sea, 1974, first for passenger
ships, tankers and bulk carriers in 1998, thereafter
for all other ships over 500 GT in 2002.
By adding the ISM Code to SOLAS it is intended
to provide an international standard for the safe
management of ships and for pollution prevention.
The ISM Code is projected to improve the safety
of international shipping and to reduce pollution
from ships by impacting on the way shipping companies are managed and operated. The Code establishes safety-management objectives and requires a
safety management system (SMS - a structured and
documented system enabling Company personnel to
implement effectively the Company safety and environmental protection policy) to be established by
“the Company”, which is defined as “the owner of
the ship or any other organization or person such as
the manager, or the bareboat charterer, who has assumed the responsibility for operation of the ship
from the ship owner and who, on assuming such responsibility, has agreed to take over all duties and
responsibility imposed by the Code.” (Part A - Implementation, 1 General, paragraph 1.1.2., of the
ISM Code).
The Company is then required to establish and
implement a policy for achieving these objectives.
“The requirements of this Code may be applied to
all ships.” (Part A - Implementation, 1 General, paragraph 1.3., of the ISM Code).
States parties of the Code must form a system
certification, verification and control. Certified organization of a flag state issues two certificates:
Document of Compliance and Safety Management
Certificate.
The ship should be operated by a Company which
has been issued with a Document of Compliance.
Such a document should be accepted as evidence
that the Company is capable of complying with the
requirements of this Code. The Document of Compliance should be issued by the Administration (the
Government of the State whose flag the ship is entitled to fly).
“The Safety Management Certificate should be
issued to a ship for a period which should not exceed
five years by the Administration or an organization
recognized by the Administration or, at the request
of the Administration, by another Contracting Government. The Safety Management Certificate should
be issued after verifying that the Company and its
shipboard management operate in accordance with
the approved safety management system. Such a
Certificate should be accepted as evidence that the
ship is complying with the requirements of this
Code.” (Part B - Certification and Verification, paragraph 13.7., of the ISM Code).
“The objectives of a safe management and operation of the ship as imposed by the ISM Code being a
part of the SOLAS convention are the criteria by
which a court or arbitration will asses the responsibility of the ship owner in the implementation of the
Code. The ship owner will establish his own regulation system and will be obliged to prove that it is being duly implemented. Any failure in this respect on
his part can have an adverse effect upon limitation of
liability, the rights from marine insurance contract
and general average. The implementation of the ISM
Code, combined with the required system of control
and written reports, practically increases the possibility of the claimant to challenge the ship owner’s
right to limitation of liability. Non compliance with
the provisions of the ISM Code, alongside with
meeting the general prerequisites for a loss of right
to limitation (Limitation Convention 1976, article 4)
can be taken as a reason for the ship owner’s loss of
right to limitation of liability.” (Pavić, D. 2001. p.
70)
Besides improvements in the technical regulations, the entry into force of the International Safety
Management (ISM) Code was an important step in
focusing on the “human element” side of shipping,
by providing an international standard for the safe
management and operation of ships and for pollution
prevention.
In implementation of the ISM Code a flag state
and port state have an important role, both because
of the right to control the ship and to create rules that
vessels have to accomplish to enter the ports.
2.4 International Convention for the Prevention of
Pollution from ships (MARPOL)
The most important convention regulating and preventing marine pollution by ships is the IMO International Convention for the Prevention of Pollution
from Ships (MARPOL 73/78). It covers accidental
and operational oil pollution as well as pollution by
chemicals, goods in packaged form, sewage, garbage
and air pollution.
While the definition included in UNCLOS applies to all sources of marine pollution, MARPOL
regulate pollution from vessels. In principle, MARPOL deals with operational discharges of harmful
substances, namely those related to the normal operation of ships. Six technical annexes regulate preventive measures regarding five main categories of
substances: oil, noxious liquid substances in bulk,
harmful substances carried by sea in packaged forms
sewage, garbage, and air pollution. The Convention
includes a Protocol concerning reports on incidents
involving harmful substances, which apply to incidents resulting from operational discharges as well
as from accidents involving a ship.
The enforcement of MARPOL relies primarily on
the use of flag State jurisdiction in regard to the construction, design, equipment and manning of ships.
MARPOL also includes regulations relating to the
inspection of foreign ships voluntarily in port, to ensure that they comply with anti-pollution rules and
standards and to prevent the ship from sailing if
these requirements are not met. Furthermore, MARPOL entitles port States to institute proceedings in
accordance with their law.
Article 6 of the MARPOL contains regulations on
the detection of violations and the procedures to be
undertaken by port States. They include detailed requirements on co-operation between the administrations of the port and flag State following the detection of a violation to this Convention committed by a
foreign ship.
Provisions concerning conditions for the issue of
mandatory certificates and the information which
these certificates should contain are included in the
technical annexes of the MARPOL, that also pro-
vides for the obligation of the flag State to undertake
not only initial surveys as a prerequisite for the issue
of certificates but also periodical and intermediate
inspections and surveys, in order to verify that the
certificates conform with the actual condition of the
vessels.
Article 4 of the MARPOL establishes the obligation
of the flag State to institute proceedings as soon as
possible with respect to any violation of the requirements of the Convention wherever it occurs, in
accordance with its law.
3 EU LEGISLATION
Shipping accidents are a huge concern to the European Community, and in particular those which
cause loss of human life or major pollution in the
EU sea areas and along the coastline of the Member
States. As there are international rules to regulate
safety at sea, the Community's main contribution has
been to transpose them into Community law, ensuring they have legal force and uniform application
throughout the Member States.
In 1993 the Commission launched an action program in a communication entitled “A common policy on safe seas” COM(93)66. This focused on the
development, transposition and application of international rules, the training of personnel and the development of infrastructures. The communication
“Towards a new maritime strategy” COM(96)0081,
confirmed the program. In its resolution of 8 June
1993 the Council approved the program and defined
the following objectives: effective and uniform implementation of international rules, enhanced training, improvement of maritime infrastructures and of
traffic procedures, legal measures concerning civil
liability, harmonization of standards with regard to
survival craft on passenger vessels, risk assessment,
environmental protection.
International safety standards for passenger vessels are applied in the Community. Thus, the SOLAS Convention and the MARPOL Convention are
applicable to the Member States and to ships flying
their flags (Regulation 2158/93). The Member States
must subject cargo ships and passenger ships to initial and annual surveys to check in particular compliance with the SOLAS Convention (Directive
1999/35 last amended by Regulation 219/2009).
Passenger ships operating on domestic voyages,
which are not covered by the SOLAS international
Convention, are covered by a Community Directive,
which is intended to guarantee maximum safety for
passengers and, at the same time, to provide a level
playing field based on convergent standards in
Community shipping (Directive 98/18, consolidated
version 01.01.2005). In order to ensure that the maximum capacity of ships is not exceeded and to provide accurate information to the emergency services
in the event of an accident, another Directive obliges
shipping companies operating to or from Community ports to count and register the crew members and
persons sailing on board passenger ships (Directive
98/41, consolidated version 11.12.2008).
The Community implements the ISM Code (Regulation 336/2006, consolidated version 11.12.2008).
Ships using Community ports and sailing in the waters under the jurisdiction of the Member States
must respect the international standards for ship
safety, pollution prevention and shipboard living and
working conditions (port State control) (Directive
95/21, consolidated version 29.11.2002).
Member States must take all necessary steps to
ensure that tankers carrying oil, gas and chemicals
and docking in the Community's sea ports be obliged
to respect certain safety conditions. Member States
with a North Sea or Channel coastline must take
steps to ensure that ships in these areas are piloted
by properly qualified sea pilots (Directive 79/115).
The Community vessel traffic monitoring and information system aims at enhancing the safety and
efficiency of maritime traffic, improving the response of authorities to incidents, accidents or potentially dangerous situations at sea, including
search and rescue operations, and contributing to a
better prevention and detection of pollution by ships
(Directive 2002/59). A Directive strives to improve
safety at sea and prevent pollution of the marine environment by improving the safety performance of
equipment carried on board and strengthening the
powers of the authorised inspection bodies (Directive 96/98, consolidated version 21.07.2008). Directive 2005/65 imposes various measures to be taken by the Member States to enhance port security
(Directive 2005/65).
The Member States of the EU have agreed to
sign, ratify or accede to the International Convention
on Civil Liability for Bunker Oil Pollution Damage
(the Bunkers Convention) (Decision 2002/762) and
to the International Convention on Liability and
Compensation for Damage in connection with the
Carriage of Hazardous and Noxious Substances by
Sea (the HNS Convention), tending to improve protection at international level for victims of marine
pollution (Decision 2002/971).
A Committee on Safe Seas and the Prevention of
Pollution from Ships (COSS) assists and advises the
Commission on all matters of maritime safety and
prevention or reduction of pollution of the environment by shipping activities (Regulation 2099/2002,
consolidated version 01.02.2007).
The independent European Maritime Safety
Agency (EMSA) assists the Commission with drafting maritime legislation, monitoring application by
the Member States and coordinating inquiries after
accidents at sea or after accidental or illicit pollution
caused by ships (Regulation 1406/2002, consolidated version 31.12.2006).
Community legislation, measures and controls
have been reinforced following the Erika and Prestige tanker disasters in 1999 and 2002 (the Commission adopted a series of preventive measures, known
as the Erika I and II packages). The prohibition and
the gradual withdrawing of single-hull oil tankers,
the close monitoring and strict enforcement of the
implementation of existing legislation, more controls
in EU territorial waters and inspections in ports, the
partial harmonization of penal sanctions for marine
pollution and the creation of the European Maritime
Safety Agency are examples of the huge effort
which has been made to improve maritime safety in
the EU. The Commission adopted a third package of
7 legislative proposals in 2005, to supplement and
improve existing rules, particularly regarding classification societies, port state control, monitoring of
maritime traffic, responsibility of flag States, maritime accident investigations and liability of shipowners.
In May, 2009 the European Parliament adopted a
new directive that forces EU countries to introduce
criminal penalties for maritime pollution, whether
caused deliberately or by negligence. The directive
introduces compulsory criminal sanctions for serious
cases of maritime pollution, and also forces Member
States to impose stringent penalties for minor cases
if they are repeated, deliberately caused or the result
of serious negligence. The EU law leaves it to national governments to set the penalties, but requires
them to be effective.
4 OTHER ISSUES REGARDING MARITIME
SAFETY
4.1 Port state control
“The basic objective of the port system is to achieve
efficiency and effectiveness of the system, high
productivity and to realize as well as maintain high
competitiveness within the environment. Consequently, the issue of port security and management
is the crucial condition of port operation.” (Bukljaš
Skočibušić, M. 2008, p. 326)
Port State Control is the inspection of foreign
ships in national ports to verify that the condition of
the ship and its equipment comply with the requirements of international regulations and that the ship is
manned and operated in compliance with these rules.
Many of IMO's most important technical conventions contain provisions for ships to be inspected
when they visit foreign ports to ensure that they
meet IMO requirements. The primary responsibility
for ships’ standards rests with the flag State - but
port State control provides a “safety net” to catch
substandard ships.
Resolution A.787(19) on Procedures for Port
State Control adopted by the IMO Assembly in 1995
contains comprehensive guidelines on port State inspections, identification of contraventions, detention
and port and flag State reporting requirements. The
guidelines include provisions on the detention of
ships.
The EU had already introduced, in 1995, a system
of Port State controls to monitor foreign ships entering EU ports which allows substandard ships to be
added to a Community blacklist and refused access
to EU ports.
4.2 Ship construction
It is assumed that tourist ships, sport and recreation
ships, ferries and fishing ships are not adequately
equipped with navigational and protection equipment. It may also be assumed that the crew aboard
such ships is not sufficiently trained for conducting
those ships. Such ships are more frequent than Convention ships and are more difficult to control. There
are differences in skills, required competences and
state control which vary from country to country.
All vessels should be constructed in such a manner that, if properly maintained, they could remain
safe for their entire economic life as well as all parts
of a ship should be easily accessed to permit proper
inspection and ease of maintenance.
An important document regulating construction
of the ships is International Code for the Construction and Equipment of Ships carrying Dangerous
Chemicals in Bulk (IBC Code). The IBC Code provides an international standard for the safe carriage
by sea of dangerous and noxious liquid chemicals in
bulk. To minimize the risks to ships, their crews and
the environment, the Code prescribes the design and
construction standards of ships and the equipment
they should carry, with due regard to the nature of
the products involved. Carriage of chemicals in bulk
is covered by regulations in SOLAS Chapter VII Carriage of dangerous goods and MARPOL Annex
II - Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk. Both Conventions
require chemical tankers built after 1 July 1986 to
comply with the IBC Code.
4.3 Places of refuge to vessels in trouble
When there is an incident, coastal States need to be
prepared. The issue of “places of refuge” is one aspect of emergency planning in the consideration of
which the rights and interests of coastal states as
well as the need to provide assistance to vessels that
are damaged or disabled or otherwise in distress at
sea ought to be taken into account.
There is no specific reference to places of refuge
in international conventions and no specific obligations on coastal states to provide places of refuge to
ships in distress. Nevertheless, it is an ancient principle that ships in distress enjoy the right to take refuge in the nearest port. This right is however no
longer absolute and concerns for public health and
the need to protect the environment have resulted in
some coastal states denying access to ships in difficulty due to the character of the cargoes they were
carrying.
International law recognizes the right of states to
regulate entry into their ports. The right of a foreign
ship to stop and anchor in cases of force majeure or
distress is explicitly referred to by UNCLOS in the
case of navigation in the territorial sea (Article 18,
paragraph 2), straits used for international navigation
(Article 39, paragraph 1(c)) and in archipelagic waters (Article 54). The right of a foreign ship to enter
a port or internal waters of another state in situations
of force majeure or distress is not regulated by UNCLOS, although this constitutes an internationally
accepted practice, at least in order to preserve human
life. This, however, does not preclude the adoption
of rules or guidelines complementing the provisions
of UNCLOS.
The duty to render assistance to vessels and persons in distress at sea is a well-established principle
of international maritime law (Article 98 of UNCLOS) and SOLAS regulation V/7 requires Governments to ensure that any necessary arrangements
are made for distress communication and coordination in their area of responsibility and for the
rescue of persons in distress at sea round their
coasts. These arrangements shall include the establishment, operation and maintenance of such search
and rescue facilities as are deemed practicable and
necessary, having regard to the density of the seagoing traffic and the navigational dangers and shall, so
far as possible, provide adequate means of locating
and rescuing such persons.
By focussing more on human life and safety rather than on what is to be done with the ship in cases
of force majeure or distress, these provisions do not
of themselves give a right of entry to a place of refuge, nor do they explicitly refer to the question of a
coastal state’s obligation to establish places of refuge. On the other hand, neither do they preclude
such a principle.
In 2003, the IMO Assembly adopted two resolutions addressing the issue of places of refuge for
ships in distress:
1. Resolution A.949(23), Guidelines on places of
refuge for ships in need of assistance, are intended
for use when a ship is in need of assistance but the
safety of life is not involved. The guidelines recognize that, when a ship has suffered an incident, the
best way of preventing damage or pollution from its
progressive deterioration is to transfer its cargo and
bunkers, and to repair the casualty. Such an operation is best carried out in a place of refuge. However, to bring such a ship into a place of refuge near a
coast may endanger the coastal State, both economically and from the environmental point of view, and
local authorities and populations may strongly object
to the operation. Therefore, granting access to a
place of refuge could involve a political decision
which can only be taken on a case-by-case basis. In
so doing, consideration would need to be given to
balancing the interests of the affected ship with
those of the environment.
2. A second resolution, A.950(23), Maritime Assistance Services (MAS), recommends that all
coastal States should establish a maritime assistance
service (MAS).
5 CONCLUSIONS
Pollution accompanies most kinds of human activities and in contrast with land ecosystems, in the water environment, pollutants quickly spread over large
distances from the sources of pollution. Main
sources of marine pollution are: land-based activities, vessel pollution, pollution from platforms, from
air, dumping, off-shore activities. However, the biggest threat comes from vessels. Emissions of oil, water ballast, petroleum, and wastewater are the most
common and dangerous. Concerning pollution from
vessels (shipping) it may be result of normal operation of ships or from maritime casualties.
People get into difficulties at sea for a variety of
reasons, including: lack of education, training and/or
knowledge; failure to take responsibility for actions;
not being prepared for the conditions (water and/or
weather) and underestimating the hazards present;
not preparing the vessel properly.
Despite the existence of a well developed framework of international standards for safety at sea and
for the protection of the marine environment (most
of them laid down in Conventions developed within
the IMO) many flag states and ship-owners continue
to break the rules, thereby putting crews and the environment at risk and benefiting from unfair competition.
Conventions are particularly important because
they are binding legal instruments. A state which ratifies or accedes to a convention is obliged to put it
into effect by making its requirements part of its
own national law.
When implementing rules, the role of the state is
very important. In accordance with Article 211, paragraph 2 of the UNCLOS, states must adopt laws
and regulations for the prevention, reduction and
control of pollution of the marine environment from
vessels “flying their flag or of their registry”. Such
laws and regulations must at least have the same effect as that of generally accepted international rules
and standards (i.e. those contained in MARPOL) established though the competent international organization (IMO). However, practice has shown that system of measures of the flag states is often very
inefficient (states with flags of convenience).
In additional states are also responsible for technical surveys, issue of certification, inspection, investigation, co-operation in the detection of violations and the enforcement of the provisions, etc.
A port state control (PSC) is also important
mechanism to promote more effective implementation of all applicable standards for maritime safety
and pollution prevention. Port State control inspections are normally limited to checking certificates
and documents. But if certificates are not valid or if
there are clear grounds for believing that the condition of the ship or of its equipment, or its crew, does
not substantially meet the requirements of a relevant
instrument, a more detailed inspection may be carried out. It is known that the maritime sector is a
global entity and that the implementation of existing
international standards varies greatly throughout the
world. This is consequently a fundamental problem
for any country, or group of countries, which would
like to ensure high safety standards for ships operating in, or near to, their coastal waters. Harmonised
standards for port State control inspections and
common qualifications for inspectors will ensure a
more consistent enforcement of maritime rules.
Every state exercises its jurisdiction and control
in administrative, technical and social matters over
ships flying its flag. For that purpose, state shall:
maintain a register of ships containing the names
and particulars of ships flying its flag, assume jurisdiction under its internal law over each ship flying
its flag and its master, officers and crew. Every state
shall take measures for ships flying its flag to ensure
safety at sea. Such measures shall include those necessary to ensure: that each ship, before registration
and thereafter at appropriate intervals, is surveyed
by a qualified surveyor of ships, and has on board
such charts, nautical publications and navigational
equipment and instruments as are appropriate for the
safe navigation of the ship; that each ship is in the
charge of a master and officers who possess appropriate qualifications, in particular in seamanship,
navigation, communications and marine engineering, and that the crew is appropriate in qualification
and numbers for the type, size, machinery and
equipment of the ship; that the master, officers and,
to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life
at sea, the prevention of collisions, the prevention,
reduction and control of marine pollution, and the
maintenance of communications by radio. (see Article 94 of the UNCLOS).
Whenever a maritime accident occurs it is necessary to do everything possible to ensure investiga-
tion. It is important to establish a system which enables legal responsibility to be determined and ensures that any compensation owed is paid. Penalties
provided for by the laws and regulations of states for
vessels flying their flag shall be adequate in severity
to discourage violations wherever they occur.
International rules do not regulate all situations
and problems. In such case, or when a state is not a
party of the conventions, the most often its national
legislation will be the one that will applicable in case
of accident and pollution (generally, coastal states
are empowered to enforce their national standards
and anti-pollution measures within their territorial
sea.). Here is also a great responsibility of the state
in protection of the marine environment.
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http://europedia.moussis.eu
www.euractiv.com
www.imo.org
International Maritime Organization
www.un.org
United Nations