Post-Collision Challenges: Seeking Safe Berth
December 18, 2006
James "Jim" Hohenstein- New York
Post-Collision Challenges:
Seeking a Safe Berth
Introduction[1]
In any serious pollution incident involving a tank vessel subject to U.S. jurisdiction or intervention, the optimal situation will be where those interested in the involved vessel promptly and effectively respond to the casualty. This response will necessarily include the mobilization of the appropriate resources to quickly address the spill and stop further spillage. That being done, one could then proceed to further stabilize the situation of the vessel (e.g., lightering) and commence planning for the further action to be taken such as how and where to repair the vessel.
Realistically, all these courses of action will require the extraordinary and coordinated efforts of many parties, including the vessel''s owner and operators, the underwriters (P&I and H&M) of the vessel as well as various contractors, such as professional salvors, tugs and the like.
Further, at every step of this process, the active consultation and involvement of U.S. governmental authorities, most particularly the U.S. Coast Guard, is not only to be presumed but will be required.
If the process described here proceeds on the optimal route, the direct involvement of the Coast Guard need not be overly intrusive nor add significantly to the costs incurred.
However, the purpose of this paper is to consider two situations which may arise when the vessel interests'' response is either inadequate or non-existent. The two legal issues to be considered here will be the denial of entry and the intervention of the Coast Guard on the high seas.
The Denial of Entry
To place this issue in context, we will first consider the reach and scope of U.S. maritime jurisdiction.
In this regard, it may be noted that the U.S. is not a party to the U.N. Convention of the Law of the Sea, December 10, 1982 ("UNCLOS") (1833 U.N.T.S. 3) but its scheme of coastal state jurisdiction has generally been adopted by the U.S. as a matter of policy.
The U.S. maritime jurisdiction thus includes:
First, the territorial sea extending seaward from the baseline of the coastal state to a distance of 12 miles. UNCLOS, Art. 8(1); Proclamation 5928 of December 27, 1988. (U.S.). In this area, the sovereign jurisdiction of the coastal state (the United States) is complete.
The second area is the continguous zone. This zone extends seaward from the baseline of the coastal state to a distance of 24 miles. UNCLOS, Art. 33(1); Presidential Proclamation 7219, September 2, 1999 (U.S.). In the contiguous zone, the coastal state may enforce its customs, fiscal, immigration and sanitary laws and regulations. UNCLOS, Art. 33(1). Perforce, the environmental laws of a coastal state may be fully applied in the continguous zone.
The third area to consider is the exclusive economic zone ("EEZ"), which begins at the outer limit of the territorial sea and extends 200 miles from the baseline of the coastal state. UNCLOS Arts. 53 and 75; 48 Fed. Reg. 10605 (Mar. 10, 1983) (U.S. Presidential Decree). Under various U.S. statutes, the right of the U.S. government, as a coastal state, to control spills and discharge in the marine environment have been asserted and established. See, e.g., Clean Water Act, 33 U.S.C. §1321.
The fourth area to discuss is the high seas, the area generally seaward of EEZ. This area is open to all states and subject to the sovereignty of none. UNCLOS, Arts. 87, 89. Jurisdiction over a vessel operating on the high seas falls to the flag state. UNCLOS, Art. 82. The flag state thus has a duty to assure the compliance of its vessel with international conventions concerning a number of matters, including the protection of the marine environment. UNCLOS, Arts. 94 and 96. (This is not to say that coastal states are powerless to take action in the event a ship is polluting off its coast on the high seas, as will be discussed below.)
Having set the jurisdictional framework: consider the following situation under U.S. law: a vessel is on the high seas off the coast of the U.S. and there is an active oil spill from this vessel. The vessel''s master requests entry into waters subject to the jurisdiction of the U.S.
Concerning the vessel''s request, under these circumstances it is clear the Coast Guard has authority to deny entry:
Each District Commander or Captain of the Port ["COTP"] subject to recognized principles of international law, may deny entry into the navigable waters of the United States or to any part or place under the jurisdiction of the United States, and within the district or zone of that District Commander or Captain of the Port, to any vessel not in compliance with the provisions of the Port and Tanker Safety Act (33 U.S.C. 1221-1232) on the regulations issued thereunder.
33 C.F.R §160, 107. The "zones" of the COTPs extends to the outer limit of the EEZ.
A vessel requesting entry under these circumstances could contend that the denied entry violates the right of innocent passage as recognized by customary international law and codified in UNCLOS, Arts. 17, 18 and 19. However, to be "innocent" the passage must be "continuous and expeditious" (Art. 18 (2)), nor can it be prejudicial to the "peace, good order or security" of the coastal state (Art. 19(1)). Further, if a vessel is engaging in "willful and serious pollution" it will be deemed to be acting to the prejudice of the coastal state (Art. 19(2)(h)). Although, as stated above, the U.S. is not a party to UNCLOS, it is fair to conclude these provisions reflect customary international law and as such, the Coast Guard would be acting in accordance with these precepts when denial of an entry request is made.
Similarly, a claim of force majeure could be made by the vessel interests. Indeed, UNCLOS Art. 18(2) addresses force majeure in the context of stopping or anchoring in the territorial sea, but does not address any "right" of entry under these circumstances. Further, under Coast Guard procedure, the burden of proof is on the owner of the vessel to demonstrate the existence not only of a force majeure condition but also that entry will correct the situation – a difficult burden to carry.
In summary on this point, the ability of the U.S. Coast Guard to deny entry under these circumstances is established and consistent with recognized principles of international law. As such, for contingency planning purposes, it is only prudent to conclude that an incident will have to be dealt with where it occurs.
Intervention
The active intervention by the U.S. government in pollution incidents on the high seas is established by statute, namely, the Intervention on the High Seas Act, 33 U.S.C. §§ 1471-81. This statute represents the domestic codification of the 1969 Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (the "Convention") (26 U.S.T. 765, T.I.A.S. 8068) and its 1973 Protocol (T.I.A.S. 10561) to which the U.S. is a signatory. The Convention was a result of the Torrey Canyon incident in 1967 and its purpose was to clarify the actions that could be taken by a coastal state on the high seas when confronted with casualties of this nature.
Initially, the U.S. authorities must make a determination that there is a "grave and imminent danger" to the coastline of the U.S. due to an oil pollution incident. If that finding is made then the U.S. government may take measures on the high seas to "prevent, mitigate or eliminate" that damage. 33 U.S.C §1472. Possible measures include: first, consideration and direction of all public and private efforts to remove or eliminate the threatened damage; second, undertake the salvage efforts, directly or indirectly; and third, remove, and if necessary, destroy the ship and its cargo. 33 U.S.C §1474.
In determining whether measures should be taken and the extent of those measures, the U.S. government authorities need to consider the extent of damage if no action is taken as well as the possible effectiveness of the measures and the extent of damage which might be caused by the measures. 33 U.S.C. §1477. Similarly, consideration must be made of not unnecessarily interfering with the rights of others, including the flag state and "persons otherwise concerned", which would presumably include the vessel''s owner. 33 U.S.C. §1476.
If possible, the governmental authorities are to consult with the vessel''s flag state (33 U.S.C. §1475) but the ability to consult is obviated in situations of "extreme urgency". 33 U.S.C. §1476.
It also is important to note that all these government actions are to be done without incurring liability to the vessel interests. 33 U.S.C. §1472. However, the vessel interests would have the right to assert a claim for compensation should the measures taken by the U.S. government exceed "those reasonably necessary" to achieve the goal of avoiding harm to the coastline. 33 U.S.C. §1479.
The case of the Argo Merchant is illustrative of these principles. That vessel, laden with 28,000 tons of crude oil, grounded 23 miles off Nantucket Island (Massachusetts, U.S. East Coast) in 1976. At this time the territorial sea of the U.S. extended only 3 miles seaward. The vessel requested authority from the Coast Guard to release oil in order to lift the vessel but the request was denied. As a result of heavy weather, the vessel broke in two: one part sank on its own accord and the other section was sunk as a result of Coast Guard naval gunfire.
Although there was some civil litigation as a result of this casualty (e.g., the owner''s limitation of liability action, In re Thebes Shipping Inc., 486 F.Supp. 436 (S.D.N.Y. 1980)), no (reported) claim was asserted against the U.S. government for compensation. Indeed, legal research has not found any cases of claims made against the U.S. government under this statute, nor indeed against any other government under the Convention itself.
From a practical standpoint, it is axiomatic that intervention such as allowed by the U.S. statute (and the Convention) is to be avoided.
Here one can but reiterate commonsense concepts:
First, communication with the Coast Guard and other governmental authorities must be prompt, continuous and candid.
Second, advance planning must be done. For example, the vessel''s required response plan must be regularly reviewed, updated and well-known to all those involved.
Third, as with any incident, the vessel''s owners, managers, operators and underwriters must be proactive.
DISCLAIMER:
The contents of this paper are not intended to be, and should not be construed as, legal advice. The assistance of attorneys should be sought with regard to any specific circumstance for which legal advice is required.
[1] This paper is intended to expand and supplement the presentation made at the Norton Rose/Holland & Knight seminar held on May 11, 2006 at Pireaus, Greece. Additionally, this paper is based in part on the work of Dennis Bryant, Senior Counsel, Holland & Knight LLP to whom I am most grateful.