Revoked by A.1184(33)
Resolution
A.949(23)
GUIDELINES ON PLACES OF REFUGE FOR SHIPS IN NEED OF ASSISTANCE
(adopted
on 5 December 2003)
THE
ASSEMBLY,
RECALLING
Article 15(j) of the Convention on the International Maritime Organization
concerning the functions of the Assembly in relation to regulations and
guidelines concerning maritime safety and the prevention and control of marine
pollution from ships,
RECALLING
ALSO the obligations and procedures for the masters to come to the assistance
of persons in distress at sea established by regulation V/33 of the
International Convention for the Safety of Life at Sea, 1974, as amended,
RECALLING
FURTHER that the International Convention on Maritime Search and Rescue, 1979,
as amended establishes a comprehensive system for the rescue of persons in
distress at sea, but does not address ships in need of assistance,
CONSCIOUS
OF THE POSSIBILITY that ships at sea may find themselves in need of assistance
relating to safety of life and protection of the marine environment,
RECOGNIZING
the importance and the need to provide guidance to master and/or salvors of
ships in need of assistance,
RECOGNIZING
ALSO the need to balance both the prerogative of a ship in need of assistance
to seek a place of refuge and the prerogative of a coastal State to protect its
coastline,
RECOGNIZING
FURTHER that provision of a common framework to assist coastal States to
determine places of refuge for ships in need of assistance and respond
effectively to requests for such places of refuge would materially enhance
maritime safety and protection of the marine environment,
HAVING
CONSIDERED the recommendation made by the Maritime Safety Committee at its
seventy-sixth and seventy-seventh session by the Maritime Environment
Protection Committee at its forty-eight session, by the Legal Committee at its
eighty-seventh session and by the Sub-Committee on Safety of Navigation at its
forty-ninth session,
1.
ADOPTS the Guidelines on places of refuge for ships in need of assistance the
text of which is set out in the Annex to the present resolution;
2.
INVITES Governments, to take these Guidelines into account when determining and
responding to requests for places of refuge from ships in need of assistance;
3.
REQUESTS the Maritime Safety Committee, the Maritime Environment Protection
Committee and the Legal Committee to keep the annexed Guidelines under review
and amend them, as appropriate;
4.
REQUESTS the Legal Committee to consider, as a matter of priority, the said
Guidelines from its own perspective, including the provision of financial
security to cover coastal State expenses and/or compensation issues; and to
take action as it may deem appropriate.
Annex.
GUIDELINES ON PLACES OF REFUGE FOR SHIPS IN NEED OF ASSISTANCE
Objectives
of providing a place of refuge
1.1
Where the safety of life is involved, the provisions of the SAR Convention
should be followed. Where a ship is in need of assistance but safety of life is
not involved, these Guidelines should be followed.
1.2
The issue of "places of refuge" is not a purely theoretical or
doctrinal debate but the solution to a practical problem: What to do when a
ship finds itself in serious difficulty or in need of assistance, but at present
the safety of life of persons involved is not implicated. Should the ship be
brought into shelter near the coast or into a port or, conversely, should it be
taken out to sea?
1.3
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 damage. Such an operation is best carried out in a
place of refuge.
1.4
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.
1.5
While coastal States may be reluctant to accept damaged or disabled ships into
their area of responsibility due primarily to the potential for environmental
damage, in fact it is rarely possible to deal satisfactorily and effectively
with a marine casualty in open sea conditions.
1.6
In some circumstances, the longer a damaged ship is forced to remain at the
mercy of the elements in the open sea, the greater the risk of the vessel's
condition deteriorating or the sea, weather or environmental situation
changing, and thereby becoming a greater potential hazard.
1.7
Therefore, granting access to a place of refuge could involve a political
decision which can only be taken on a case-by-case basis with consideration of
the balance between the advantage for the affected ship and the environment
resulting from bringing the ship into a place of refuge and the risk to the
environment resulting from that ship being near the coast.
1.8
There are circumstances under which it may be desirable to carry out a cargo
transfer operation or other operations to prevent or minimize damage or
pollution. For this purpose it will usually be advantageous to take the ship to
a place of refuge.
1.9
Taking such a ship to a place of refuge would also have the advantage of
limiting the extent of coastline threatened by damage or pollution, but the
specific area chosen may be more severely threatened. Consideration must also
be given to the possibility of taking the affected ship to a port or terminal
where the transfer or repair work could be done relatively easily. For this
reason the decision on choice and use of a place of refuge will have to be
carefully considered.
1.10
The use of places of refuge could encounter local opposition and involve
political decisions. The coastal States should recognize that a properly argued
technical case, based on a clear description of the state of the casualty,
would be of great value in any negotiations which may take place.
1.11
At the international level, the Conventions listed in Appendix 1, inter alia,
constitute the legal context within which coastal States and ships act in the
envisaged circumstances.
1.12
The purpose of the Guidelines is to provide Member Governments, shipmasters,
companies* (particularly in connection with the ISM Code and procedures arising
therefrom) and salvors with a framework enabling them to respond effectively
and in such a way that, in any given situation, the efforts of the master and
shipping company and the efforts of the government authorities are
complementary. In particular, an attempt has been made to arrive at a common
framework for assessing the situation of ships in need of assistance.
______________
* As defined in the ISM Code.
1.13
These guidelines do not address the issue of operations for the rescue of
persons at sea in as much as the practical difficulties that gave rise to the
examination of the issue of places of refuge relate to problems other than
those of rescue. Two situations can arise:
- the ship, according to its
master's assessment, is in need of assistance but not in a distress situation
(about to sink, fire developing, etc.) that requires the evacuation of those on
board, or
- those on board have
already been rescued, with the possible exception of those, who have stayed on
board or have been placed on board to attempt to deal with the situation of the
ship.
1.14
If, however, in an evolving situation, the persons on board find themselves in
distress, the rules applicable to rescue operations under the SAR Convention,
the IAMSAR Manual and documents arising therefrom have priority over the
present Guidelines (and procedures arising herefrom).
1.15
In any case the competent MRCC has to be informed about any situation which may
develop into a SAR incident.
1.16
Even though a "rescue operation" as defined in the International
Convention on Maritime Search and Rescue (SAR) is not the case, the safety of
persons must nevertheless be constantly borne in mind in the application of
these Guidelines, particularly in two respects:
- if the ship poses a risk
(explosion, serious pollution, etc.) to the life of persons in the vicinity
(crews of salvage vessels, port workers, inhabitants of the coastal area,
etc.);
- if persons voluntarily
remain (master, etc.) or go (firefighters, or other experts, personnel of
marine salvage or towage companies, etc.) on board to attempt to overcome the
difficulties experienced by the ship.
1.17
These Guidelines do not address the issue of liability and compensation for
damage resulting from a decision to grant or deny a ship a place of refuge.
1.18
Ship in need of assistance means a ship in a situation, apart from one
requiring rescue of persons on board, that could give rise to loss of the
vessel or an environmental or navigational hazard.
1.19
Place of refuge means a place where a ship in need of assistance can take
action to enable it to stabilize its condition and reduce the hazards to
navigation, and to protect human life and the environment.
1.20
MAS means a maritime assistance service, as defined in the resolution
A.950(23), responsible for receiving reports in the event of incidents and
serving as the point of contact between the shipmaster and the authorities of
the coastal State in the event of an incident.
2. GUIDELINES FOR ACTION REQUIRED OF MASTERS
AND/OR SALVORS IN NEED OF PLACES OF REFUGE
2.1
The master should, where necessary with the assistance of the company and/or
the salvor identify the reasons for the ship's need of assistance. (Refer to
paragraph 1 of Appendix 2.)
Identification of hazards and assessment of
associated risks
2.2
Having made the appraisal referred to in paragraph 2.1 above, the master, where
necessary with the assistance of the company and/or the salvor, should estimate
the consequences of the potential casualty, in the following hypothetical situations,
taking into account both the casualty assessment factors in their possession
and also the cargo and bunkers on board:
- if the ship remains in the
same position;
- if the ship continues on
its voyage;
- if the ship reaches a
place of refuge;
- if the ship is taken out
to sea.
Identification of the required actions
2.3
The master and/or the salvor should identify the assistance they require from
the coastal State in order to overcome the inherent danger of the situation.
(Refer to paragraph 3 of Appendix 2.)
Contacting the authority of the coastal State
2.4
The master and/or the salvor should make contact with the coastal State in
order to transmit to it the particulars referred to in paragraphs 2.1 to 2.3
above. They must in any case transmit to the coastal State the particulars
required under the international conventions in force. Such contact should be
made through the coastal States Maritime Assistance Service (MAS), as referred
to in resolution A.950(23).
Establishment of responsibilities and
communications with all parties involved
2.5
The master and/or the salvor should notify the MAS of the actions that are
intended to be taken and within what period of time.
2.6
The MAS should notify the master and/or the salvor of the facilities that it
can make available with a view to assistance or admittance, of the ship to a
place of refuge, if required.
2.7
Subject, where necessary, to the coastal States prior consent, the master and
the shipping company should take any necessary response actions, such as
signing a salvage or towage agreement or the provision of any other service for
the purpose of dealing with the ship's situation.
2.8
The master, the company and, where applicable, the salvor of the ship should
comply with the practical requirements resulting from the coastal State's
decision-making process referred to in paragraph 3.12 to 3.14.
2.9
The reporting procedures should be in accordance with the procedures laid down
in the safety management system of the ship concerned under the ISM Code or
resolution A.852(20) on Guidelines for a structure of an integrated system of
contingency planning for shipboard emergencies, as appropriate.
3. GUIDELINES FOR ACTIONS EXPECTED OF COASTAL
STATES
3.1
Under international law, a coastal State may require the ship's master or
company to take appropriate action within a prescribed time limit with a view
to halting a threat of danger. In cases of failure or of urgency, the coastal
State can exercise its authority in taking responsive action appropriate to the
threat.
3.2
It is therefore important that coastal States establish procedures to address
these issues, even where no established damage and/or pollution has occurred.
3.3
Coastal State, in particular, should establish a Maritime Assistance Service
(MAS)*.
____________
* Unless neighbouring States make the
necessary arrangements to establish a joint service.
Assessment of places of refuge
Generic
assessment and preparatory measures
3.4
It is recommended that coastal States endeavour to establish procedures
consistent with these Guidelines by which to receive and act on requests for
assistance with a view to authorizing, where appropriate, the use of a suitable
place of refuge.
3.5
The maritime authorities (and, where necessary, the port authorities) should,
for each place of refuge, make an objective analysis of the advantages and
disadvantages of allowing a ship in need of assistance to proceed to a place of
refuge, taking into consideration the analysis factors listed in paragraph 2 of
Appendix 2.
3.6
The aforementioned analysis, which should take the form of contingency plans,
is to be in preparation for the analysis provided for below when an incident
occurs.
3.7
The maritime authorities, port authorities, authorities responsible for shore
side safety and generally all governmental authorities concerned should ensure
that an appropriate system for information-sharing exists and should establish
communications and alert procedures (identification of contact persons,
telephone numbers, etc), as appropriate.
3.8
The aforementioned authorities should plan the modalities for a joint
assessment of the situation.
3.9
This analysis should include the following points:
- seaworthiness of the
vessel, in particular buoyancy, stability, availability of means of propulsion
and power generation, docking ability, etc;
- nature and condition of
cargo, stores, bunkers, in particular hazardous goods;
- distance and transit time
to a place of refuge;
- whether the master is on
board;
- the number of other crew
and/or salvors and other persons on board and an assessment of human factors,
including fatigue;
- the legal authority of the
country concerned to require action of the ship;
- whether the ship insured
or not insured;
- if the ship is insured,
identification of the insurer, and the limits of liability available;
- agreement by the master
and company of the ship to the proposals of the coastal State/salvor to proceed
or to be brought to a place of refuge;
- provisions of the
financial security required;
- commercial salvage
contracts already concluded by the master or company of the ship;
- information on the
intention of the master and/or salvor;
- designation of a
representative of the company at the coastal State concerned;
- risk evaluation factors
identified in appendix 2; and
- any measures already
taken.
3.10
An inspection team designated by the coastal State should board the ship, when
appropriate and if time allows, for the purpose of gathering evaluation data.
The team should be composed of persons with expertise appropriate to the
situation.
3.11
The analysis should include a comparison between the risks involved if the ship
remains at sea and the risks that it would pose to the place of refuge and its
environment. Such comparison should cover each of the following points:
- safeguarding of human life
at sea;
- safety of persons at the
place of refuge and its industrial and urban environment (risk of fire or
explosion, toxic risk);
- risk of pollution;
- if the place of refuge is
a port, risk of disruption to the port's operation (channels, docks, equipment,
other installations);
- evaluation of the
consequences if a request for place of refuge is refused, including the
possible effect on neighbouring States; and
- due regard should be given
when drawing the analysis, to the preservation of the hull, machinery and cargo
of a ship in need of assistance.
After
the final analysis has been completed, the maritime authority should ensure
that the other authorities concerned are appropriately informed.
Decision-making process for the use of a
place of refuge
3.12
When permission to access a place of refuge is requested, there is no
obligation for the coastal State to grant it, but the coastal State should
weigh all the factors and risks in a balance and give shelter whenever
reasonably possible.
3.13
In the light of the outcome of the assessment provided for above, the coastal
State should decide to allow or refuse admittance, coupled, where necessary,
with practical requirements.
3.14
The action of the coastal State does not prevent the company or its
representative from being called upon to take steps with a view to arranging for
the ship to proceed to a place of refuge. As a general rule, if the place of
refuge is a port, a security in favour of the port is required to guarantee
payment of all expenses, which may be incurred in connection with its operation
such as measures to safeguard the operation, port dues, pilotage, towage,
mooring operations, miscellaneous expenses, etc.
Appendix 1.
APPLICABLE INTERNATIONAL CONVENTIONS
At
the international level, inter alia, the following Conventions and Protocol
constitute the legal context within which coastal States and ships act in the
envisaged circumstances*.
______________
* It is noted that there is at present no
international requirement for a State to provide a place of refuge for vessels
in need of assistance.
- United Nations Convention
on the Law of the Sea (UNCLOS), in particular article 221 thereof*;
- International Convention
relating to Intervention on the High Seas in Cases of Oil Pollution Casualties,
1969 (the Intervention Convention), as amended;
- Protocol relating to
Intervention on the High Seas in Cases of Pollution by substances other than
Oil, 1973;
- International Convention
for the Safety of Life at Sea, 1974 (SOLAS 1974), as amended, in particular its
chapter V thereof;
- International Convention
on Salvage, 1989 (the Salvage Convention)**;
- International Convention
on Oil Pollution Preparedness, Response and Co-operation, 1990 (the OPRC
Convention);
- International Convention
for the Prevention of Pollution from Ships 1973, as modified by the Protocol of
1978 (MARPOL 73/78);
- International Convention
on Maritime Search and Rescue 1979 (SAR 79), as amended;
- Convention on the
Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972;
- Convention Relating to
Civil Liability in the Field of Maritime Carriage of Nuclear Material, 1971;
- Convention on Limitation
of Liability for Maritime Claims (LLMC), 1976;
- International Convention
on Civil Liability for Oil Pollution Damage (CLC), 1969;
- International Convention
on Civil Liability for Oil Pollution Damage (CLC), 1992;
- International Convention
on the Establishment of an International Fund for Compensation for Oil
Pollution Damage (FUND), 1992 .
______________
* "1. Nothing in this Part shall
prejudice the right of States, pursuant to international law, both customary
and conventional, to take and enforce measures beyond the territorial sea
proportionate to the actual or threatened damage to protect their coastline or
related interests, including fishing, from pollution or threat of pollution
following upon a maritime casualty or acts relating to such a casualty, which
may reasonably be expected to result in major harmful consequences.