Places of Refuge for Ships: Emerging Environmental Concerns of a Maritime Custom.

• Author: Noyes, John E.
• Position: Book review

PLACES OF REFUGE FOR SHIPS: EMERGING ENVIRONMENTAL CONCERNS OF A MARITIME CUSTOM (Aldo Chircop & Olof Linden eds., Martinus Nijhoff Publishers 2006).

1. INTRODUCTION

   The damaged tankers Erika and Prestige, denied access to ports or other places of refuge, sank in 1999 and 2001, respectively. (1) They spilled their cargoes of oil, wreaking much environmental damage on French and Spanish coastlines and damaging the fishing and tourist industries. Another ship in distress, the Castor, was towed around the Mediterranean for over a month in 2001, having been denied entry by numerous states, before its cargo of gasoline was safely offloaded at sea. (2) Denying refuge to a damaged tanker may alleviate understandable anxieties of local authorities, but this course of action may also render salvage operations impossible and contribute to an environmental catastrophe that could have been avoided.

   When foreign flag vessels in distress seek access to places of refuge, complex problems arise. The issue of access to places of refuge illustrates how difficult it is to arrive at a new legal consensus when changes in technology and social attitudes challenge traditional legal understandings--in this case, the customary international law right of refuge in internal waters. (3) Competing legal perspectives, reflecting the concerns of various affected constituencies, vie for prominence. The appropriate recourse is to some expert process in which these various concerns can be evaluated in light of specific risk factors involved in each particular catastrophe. What process should be used? Can all significant constituencies--ship owners, cargo owners, their insurers, salvage interests, ports and coastal communities, environmental and "international community" interests--participate? What are the prospects for developing a legal process that operates quickly and efficiently, that permits input from experts, and that accommodates essential interdisciplinary perspectives?

   This essay first provides an overview of Places of Refuge for Ships, a book that contains essential information and perspectives for lawyers and policy makers. Part III then briefly explores why the issue of places of refuge is daunting. The reasons for the complexity of this issue set the scene for Part IV, which proposes a process-oriented approach to assess and manage risks where vessels in distress seek access to places of refuge.

2. OVERVIEW OF PLACES OF REFUGE FOR SHIPS

   Places of Refuge for Ships addresses its topic through a multidisciplinary lens. Part I of the book highlights management perspectives on problems associated with places of refuge. Part I's first chapter, written by one of the book's coeditors, Aldo Chircop of Dalhousie Law School, examines the International Maritime Organization's influential, though legally nonbinding, 2003 Guidelines on Places of Refuge for Ships in Need of Assistance. (4) The second chapter, prepared by the other co-editor, Olof Linden of the World Maritime University in Sweden, explores coastal and ocean management, developing the important theme that the problem of places of refuge should be addressed through an integrated interdisciplinary approach, rather than through resort to rules that regulate marine based primarily on a vessel's nationality or location. Part ! also contains four other chapters, on the environmental component of the IMO Guidelines (William Ritchie), risk assessment and decision making by maritime administrations (Jens-Uwe Schroder), port perspectives (Rosa Mari Darbra Roman), and the roles of the media in covering maritime disasters (Mark Clark).

   Part II, on legal and policy analysis, contains the bulk of the book's treatment of international law. Aldo Chircop has contributed two solid chapters, one on the customary law of refuge for ships in distress and another on international environmental law considerations. Part II also includes chapters on refuge and salvage (Proshanto K. Mukherjee), compensation for damage (Gaothard Mark Gauci), insurance (Patrick Donner), and recovery in general average (5) in cases of refuge (Hugh Kindred), which serve as useful introductions to these topics.

   The third and final Part of Places of Refuge evaluates various national approaches concerning places of refuge, with a particular focus on process in federal states. It contains chapters on Australia (Sam Bateman and Angela Shairp), Belgium (Eric Van Hooydonk), Canada (Philip John), Denmark (John Liljedahl), Germany (Uwe Jenisch), the United Kingdom (Toby Stone), and the United States (Paul Albertson).

   The problem of refuge has no easy answers. The challenge thus becomes to devise procedures that allow stakeholders to be heard and risks to be effectively assessed and managed in the face of often conflicting values and incentives. In order to understand this challenge, it is important to appreciate why the issue of places of refuge is complex.

3. THE COMPLEXITY OF THE ISSUE OF PLACES OF REFUGE

   The law concerning places of refuge, and more generally concerning ships in distress, is undoubtedly complex. It has been so for years, and has recently become more so, for several reasons. First, decisions about ships seeking refuge reflect a range of increasingly conflicting values. Second, multiple stakeholders hold these conflicting positions intensely. The matter of vessels seeking refuge is salient and politically sensitive. Third, it is difficult, ex ante, to devise a clear rule concerning how cases involving vessels in distress seeking places of refuge should be resolved. The treatment of such vessels depends on many variables: the condition of the ship, its location, its cargo, its insurance coverage, the availability and capabilities of ports and salvors, and weather.

   First, decisions about places of refuge implicate many different values. The resulting complexity is not entirely new. Rules applicable to ships in distress have historically derived from different fields of international law. Trade law, humanitarian law, the law of armed conflict, admiralty law, the law of the sea, and (a newer development) international environmental law are all relevant. Different fields of law prioritize different (and sometimes competing) concerns: the integrity of ships and their cargoes, the sanctity of lives put in peril when ships are in distress, the navigational freedom and immunity of warships, a coastal state's ability to protect itself and to apply its laws when an appropriate jurisdictional nexus exists, and the global importance of sustainability and non-degradation of the environment. Places of Refuge ably explores many of these legal traditions.

   Value conflicts related to places of refuge have intensified in recent decades. The predominant humanitarian rationale for a right of access of vessels in distress to a place of refuge--a right often asserted as existing in customary international law (6)--has been undermined. This is so because of changes in technology. These changes have helped to minimize the danger to humans, but have increased the risk of damage from ships. Traditionally, access to places of refuge was often necessary in order to save the lives of people on board a ship in distress. Refuge thus linked to a broader duty of assistance that also found expression in the international law rule that vessels have a duty to render assistance to those in danger of being lost at sea. (7) Today, however, technology permits precise location of ships in distress, and passengers and crew members on board such ships often can be offloaded by helicopter or ship. Yet the need to insure the safety of the crew and passengers on board a vessel in distress never completely explained the customary international law rule allowing access to ports or places of refuge in situations of...