"Ports of refuge" by Vessels in Distress
by Neil Klein
Originally published in The Maritime ExecutiveJanuary/February 2009 Edition
Request for "Port of Refuge" by Vessel in Distress — Considerations by U.S. Port
October 23, 2008
“Ports of refuge” captured the media’s attention in November 2002 with the sinking of the T/V Prestige off the coast of Spain. The spill was over 20 million gallons of fuel oil, which occurred after the Spanish authorities decided to tow the vessel out to sea rather than bring it into port.
The disaster highlighted the tension between the economic, environmental and political interests of coastal states vs. the consequences of a ship deteriorating and breaking apart at sea. It also showed there was a legal and regulatory vacuum regarding the responsibilities of the world’s coastal states to mitigate environmental catastrophes.
Scenario
Consider that the Outrageous (an oil tanker) steams from Alaska after loading crude oil, down the U.S. western seaboard, on its way to Chile. The vessel (“entered” with a Protection & Indemnity Club in England) is owned by a Malaysian company and time-chartered to a South African company. There are complicated contractual arrangements between the various parties.
The weather becomes treacherous and approaches gale force proportions. By the time the Outrageous is off the coast of San Diego, California the Beaufort scale is at 12, i.e. hurricane strength with wave height of 50-feet or more. The vessel is difficult to maneuver. The Master is extremely concerned, since he knows the vessel is old and in danger of breaking up. So he calls the owners and requests urgent assistance – he wants to put into a U.S. port and ride out the storm before the vessel breaks apart and causes a major oil spill.
By this time, the South African charterers are in the loop, but they do not want to pay for time in a non-scheduled port. The Chilean buyers do not want the vessel to deviate from its “charter party” ordained voyage as the cargo is destined for immediate discharge to the national petroleum institute, who in turn has a contract for delivery to a local governmental entity. The vessel owner does not want to be responsible for an oil spill. And the P&I Club has already contacted its lawyers to liaise with the U.S. Coast Guard and local oil spill response teams.
The Coast Guard contacts the closest port and demands that the Outrageous be allowed to enter the harbor and wait out the storm; by the way, the vessel is leaking oil.
Time is of the essence. How should the Port respond to the Coast Guard’s request and the calls from vessel owner, charterer, cargo owners, P&I Club, U.S. immigration authorities (who hear there may be stowaways on board) and a battery of lawyers?
No Absolute U.S. Precedent
Oil spill catastrophes (and accompanying environmental and economic impact) highlight the need for a comprehensive decision-making framework to evaluate requests by a vessel for a port of refuge. Unfortunately, there is a notable absence of U.S. law on the subject of a port’s rights and obligations as to a vessel in peril.
On the one hand, relevant statutes, case law and secondary materials do not disclose an absolute legal duty on a U.S. port to grant refuge to a vessel in peril. On the other hand, since the Port’s operations impact a multitude of interests – i.e. federal, state and local interests in the economy, environment, maritime commerce, health and safety of the community, and its own economic and environmental interests (among others) – it cannot really argue it has an absolute right to deny a request for refuge by a shipowner.
Instead, a “confluence of interests” requires that the Port balance various factors on a case-by-case basis to determine if granting the request for refuge is the best course of action.
U.S. Coast Guard is Ultimate Decision Maker
The ultimate decision-maker is the U.S. Coast Guard acting as “Captain of the Port” (“COTP”):
It has federal authority to order ships within the territorial waters of the U.S. into and out of ports, harbors and embayments where necessary to protect the public, environment and maritime commerce. Further, it can enlist the “aid and cooperation” of federal, state, county and municipal agencies in the exercise of its authority. A port could therefore play an advisory role in the decision on whether to grant or deny refuge to a vessel.
There does not appear to be legal precedent on whether a port can legally refuse the Coast Guard’s determination that a vessel should be granted refuge in a port:
The closest example involved the 2004 M/V Athos I Oil Spill in the main channel of the Delaware River outside the Port of Delaware. The vessel remained anchored for 14-days because of a stalemate between the vessel and a shipyard facility over the potential liability from repairs. The Coast Guard considered several options, including whether to order the facility to accept the vessel.
Ultimately, the stalemate was resolved before any option was elected, but it is believed that any Coast Guard order to the facility to accept the vessel would have been challenged in court.
If the Coast Guard decided to order a leaking/damaged vessel into a Port, but the Port was strongly opposed to it with factual evidence to support a refusal, the Port would probably have to file an urgent application in federal court to challenge the order.
Recommendations
For the Port to evaluate the request and consequences to the vessel/environment should the vessel remain in place, continue on its voyage or proceed to a place of refuge, it should:
· Obtain information on the status of vessel & crew, assistance sought, anticipated needs at refuge, and mitigation by the vessel
· If time permits, activate a “unified command” and consult with “stakeholders”
· Evaluate risks to human health, safety & the environment
* Determine response & salvage/repair resources
· If the risks weigh in favor of granting refuge, point out the best location for refuge (port, anchorage or breakwater area), firefighting and repairs
Further, the Port should appoint a “communications director” to interact with federal & state agencies, media, COTP, immigration, customs, security and salvage. And the need for a good public relations campaign and damage control due to the political impact cannot be underestimated.
Finally, the Port should create a “contingency response plan” to deal with an urgent port of refuge request.
