Negative evidence

José M Alcántara looks at the possible consequences of the ‘negative approach’ adopted by some states to places of refuge.

PLACES of refuge is a controversial issue and likely to become even more so as some states in the international arena have overreacted to IMO proposals by adopting a ‘negative approach’. Not only do they believe they have no obligation to provide shelter to ships in distress, they are demanding very high guarantees before granting a ship access to a safe haven, and imposing heavy liabilities on the ship or its guarantor.

Opinions differ as to whether international (customary) law obliges a coastal state to admit a ship in distress into a place of refuge within its jurisdiction. Ships in distress have always had the right to enter any port or place of refuge regardless of the cause of distress, but in the last 200 years the cases of ships in distress being rejected by coastal states outnumber the cases in which a safe shelter was given.

The Andros Patria (1978), Prinsendam (1980), Trave Ore (1987), Toledo (1990), Kirki (1991), Iron Bacon (1995), Attican Unity (1997), Erika (1999), Castor (2000), Kitano, Sun (2001), Prestige (2002) and Vicky (2003) are just some of the vessels that were sent out to the open sea after refuge was denied by coastal authorities.

Experience shows that coastal states tend to make use of their sovereignty and exhibit a clear-cut right to refuse entry to ships in distress. They invoke legal support in the London Intervention Convention 1969, the London Salvage Convention 1989, the EU Directives on Port State Control and Traffic Monitoring, the Bonn Agreement Counter Pollution Manual and even the recent IMO Guidelines on Places of Refuge. The main argument seems to be that they must use their discretional power to refuse a ship entry in order to preserve the marine environment in their coastal areas, despite the argument seeming to work in reverse in the case of the Prestige. The theory of the absolute right of refusal continues among many coastal states, leading to the ‘not in my backyard’ syndrome. Its justification ultimately lies in the sovereign power of the states.

The Spanish example is a neat confirmation of the ‘negative approach’. In a post-Prestige enactment, on February 6, 2004, the Spanish government of the time adopted Royal Decree 210/2004 relating to traffic monitoring, which allocated rules 20-25 to Places of Refuge. Firstly, the decree expressly states that the Spanish authorities are not obliged to grant a ship in distress access to a place of refuge. Secondly, it requires prior provision of financial security in the form of a bank guarantee.

As a general rule, the letters of undertaking issued by P&I clubs or by civil liability insurers are not acceptable. What is acceptable is security from a bank with an office in Spain, in favour of the Spanish authorities, expressly subjected to Spanish jurisdiction and above all covering very high sums.

The financial security will be deemed to cover damages and costs. Potential damages, up to any amount, include compensation claims arising from catastrophic events such as fire, explosions, breakdown of machinery or of the ship’s structure, collision, pollution, loss of vessel stability, grounding. Liability for these claims cannot be limited by the ship or the cargo interests as the claims will be paid straightforwardly out of the financial security established.

Liability for costs includes salving or relieving measures, cost of raising or removing the wreck or its cargo, and reinstatement of the coastal or marine environment. The decree does not clarify whether the damage would be restricted to the period ranging from entry to departure of the place of refuge or if liability should extend by way of consequence to the moment of the vessel’s breakdown and from there until it reaches the place of refuge.

The decision to grant refuge to a ship in distress is to be taken after the completion of strict formalities and information requirements, internal consultations, and expert advice, and within no more than 96 hours. This will certainly raise questions over just how efficient the decision can be regarding a ship that may be severely endangered.

The new Spanish socialist government is minded to reconsider the rules of Decree Law 210/2004 on places of refuge and seems to be willing to apply its provisions in a flexible and case-by-case manner. The ‘negative approach’ is largely anchored in the doctrine of state sovereignty, which is likely to prevent ratification of a potential international convention on places of refuge, should one come to fruition in the next 10-15 years.