The third edition of the Gard Handbook on Protection of the Marine Environment was published in 2006. A copy of the publication has been sent, free of charge, to all Gard P&I members and business associates. Further copies can be purchased from Gard AS.
Introduction to the Third Edition
A further nine years have passed since the second edition of this Handbook was published by Gard in 1997. However, over three decades have passed since the late N.B. (Lai) Herlofson, then Gard Managing Director, first introduced the marine pollution subject on to the club's agenda. At that time the idea was not generally considered to be of critical relevance for ship operations or P&I claims. We know better today. In any case, at that time, Lai Herlofson's views prevailed and a very rudimentary, loose-leaf survey of worldwide pollution legislation was produced.1 In retrospect, it was a pioneering effort by Gard on a subject that would very quickly become a major preoccupation of P&I clubs specifically and the shipping industry generally. By the early 1980s global concerns about ship-generated marine pollution had already developed a significant global regime that demanded a new, more comprehensive study. This resulted in the first edition of the Handbook.2
The study was well received by Gard members and the shipping industry generally, as it appeared to fill a void in the rapidly expanding marine pollution literature. It had been hoped that the first edition would be revised and updated within five years. However, for a variety of reasons this was not to be. One of the principal reasons was the uncertainty of the system, applicable to US waters, which developed after the Exxon Valdez grounding. This accident led directly to the US Oil Pollution Act, 1990 (OPA'90)3 and subsequently to the decision that the United States would proceed unilaterally rather than within the international system that had been developed under the auspices of the International Maritime Organization (IMO). As a result, a second, more comprehensive, edition was not published until 1997.4
The intervening years have witnessed a number of important changes that impact on the subject addressed in this Handbook. The wide, global implementation of the United Nations Convention on the Law of the Sea (UNCLOS)5 now provides ocean users generally, and marine environmental protection specifically, with an important international legislative umbrella beneath which global, regional and national legislation has been developed. Also at the global level, the United Nations Environment Programme (UNEP), through its Regional Seas system has moved contingency planning and related criteria forward.
However, maximum progress has, once again, taken place at the International Maritime Organization (IMO), the pre-eminent global shipping organization, under its guiding principle to achieve "safer shipping and cleaner seas". IMO has developed several important new conventions, protocols and other instruments, directly and indirectly related to marine pollution, since the last edition of this Handbook. Examples are the FUND Protocols 2000 and 2003; OPRC/HNS 2000; MARPOL Protocol 1997 (Annex VI); PAL Protocol 2002; Bunkers 2001; AFS 2001; BWM 2004.6 In addition, a number of existing conventions are now much more widely accepted and implemented.7 This is the result of major efforts by the IMO in recent years. In other words, the global, legislative network, designed to protect the marine environment, as envisaged by the IMO, when the first edition of this Handbook was published, is virtually in place today.
Shipping operations continue to be monitored more actively than ever, in terms of maritime safety and the protection of the marine environment, at the national, regional and global levels. At the national level, marine pollution is today considered a serious offence everywhere, involving very high fines, often significant delay and regular penal sanctions. At the regional level, the very successful European Paris Memorandum8 port state inspection regime has now been expanded into the Asian, South American, Caribbean, Mediterranean, Indian Ocean, Black Sea, and West and Central African regions. At the global level, the shipping industry itself continues to become more and more environmentally conscious. Hull and machinery underwriters, P&I clubs, the various classification societies, as well as a number of other non-governmental international organisations, are all proactively involved in matters of maritime safety and environmental protection.
Regrettably, the intervening years have also witnessed a number of serious maritime accidents, many involving considerable pollution. This has exposed a number of weaknesses in the global shipping system. In particular, problems involving human error, sub-standard vessels, and access to places of refuge for vessels in difficulty are of special global concern. Disasters such as those involving the tankers Erika and Prestige, which will be discussed further below, brought an extraordinary amount of unwelcome media and political attention on the industry. A global inquiry into ship safety also focused sharply on substandard shipping.9 In addition, the global security concerns that have arisen in the aftermath of September 11, 2001, have focused on the vulnerability of the shipping industry, especially the sector involved in the carriage of pollutants and hazardous substances. As a result, with the urging of the United States, the IMO has developed a complex, new ship and port security code that includes a number of environmental safeguards.10
As already indicated, the United States has been pursuing marine pollution control unilaterally and has developed a formidable and complex new legal system that creates a very high risk factor for ship operations in US waters should an accident involving pollution occur. This unilateral approach has, in the past, been considered to be in virtual conflict with the international regime established under IMO auspices. Yet the fallout from the Erika and Prestige disasters has provided a new marine environmental focus for the European Commission (EU) that appears to indicate that regional, unilateral action in this area was necessary, as the IMO regime was considered to be too inadequate or cumbersome.
Such a view appears to be an overreaction that disregards the many advantages of an international system. Although the EU continues to work closely with the IMO there are some indications that it may also take a unilateral route.11 Nevertheless, recent EU Directives on ship-source pollution may well run counter to international law. This was forcefully expressed by a former president of the International Tribunal on the Law of the Sea,12 who stated that such a directive not only impinges on the principles developed in the MARPOL Convention but also on UNCLOS itself. This would lead to the undesirable position where "a member state of the EU which implements such a directive in its entirety will face a difficult legal problem in its relationship with other parties to MARPOL and UNCLOS who are also members of the EU."13 The problem is illustrated by the fact that a number of EU member states have been, or are in the process of, implementing new safety rules that may not be in compliance with the international system. In particular some of these states are now frequently implementing criminal law sanctions in an arbitrary or highly discriminatory manner. In fact the increasing use of criminal law sanctions in the industry has led to the decision to include a specific chapter, dealing with this area, the latest edition of the Handbook. It is also unfortunate that the international convention covering liability and compensation for pollution arising from substances other than oil, completed in 1996, is only gaining very slow acceptance. Last but not least, one of the weakest links in maritime safety and the protection of the marine environment, continues to be the human factor, which is an area of specific focus later in the book.
Nevertheless, there is considerable evidence of a significant reduction in maritime accidents involving marine pollution. Furthermore, deliberate, operational pollution is in the process of being eliminated. This has been achieved not only in response to the wide-ranging sanctions that exist in all parts of the world, but is also due to increasingly strict international regulations specifically designed to phase out operational pollution. In addition, the industry has been able to develop better liability regimes to compensate those who suffer damage from oil pollution with significantly increased upper liability limits that now cover all but the most catastrophic accidents. Although these achievements have been recognised in reports to the General Assembly of the United Nations by the Secretary-General on a regular basis,14 they generally do not receive the media attention they deserve. Unfortunately, the media often seems to regard shipping as "an industry which pollutes, which kills sea birds, and which is run by shadowy tax exiles, shielded from regulation or retribution by flags of convenience."15
This negative view frequently disregards the important commercial contribution made by shipping to global prosperity. At a time when the global economy has reached new levels of wealth, shipping continues to be a vital part of this development. In 2004 the world fleet carried around 90 per cent of total global exports worth USD 8.9 trillion.16 This vital contribution goes generally unnoticed despite the fact that in the last four decades total seaborne trade has more than quadrupled from less than six thousand billion ton-miles
in 1965 to the latest full-year figure of 25 thousand billion tonne-miles in 2003.17 (See Figure Intr.2.)
This is especially apparent in the continuing increase in the carriage of oil and oil products demanded by a growing global economy. (See Figure Intr.3.)At the same time the negative view of world shipping ignores the fact that ship-generated pollution became a minor problem quite some time ago. This was confirmed in a recent address the Chairman of the International Association of Classification Societies (IACS) in which he stated:
"By every available statistical measure, the international shipping industry and its fleet of ships, aggregating some 850 million DWT, is carrying and delivering more cargo more safely than ever before."18
The IACS Chairman went on to give details of the greatly improved safety record of the industry. Of more than 5,000 bulk carriers over 10,000 DWT, just four were lost in 2003, none attributable to structural failure. Five were lost in 2004, with only one from structural failure. This meant that losses in this sector totalled 150,000 DWT out of a fleet of 330 million DWT - a loss ratio of 0.05 per cent. Of the global container fleet of 3,000 vessels only one ship has been lost in the past three years. Two tankers were lost in 2003, and two more, totalling 34,000 GT, were lost in 2004, from a fleet of 3,800 vessels that carried oil over 10.7 billion ton-miles in 2004.19 This indicates that while not perfect, the industry has greatly improved its safety and environmental record.
This edition of the Handbook is, once again, compiled under the auspices of one of the largest P&I clubs in the world, which is one of the pioneers in the serious study of the legal and operational aspects of maritime safety and the protection of the marine environment. As a result, it complements a number of other Gard publications that have appeared in recent years.20 This confirms the belief that P&I clubs have an obligation to their members to proactively address a problem that not only comprises a very significant sector of total P&I claims, but that also seriously affects the professional image of shipping in general. Recent developments have confirmed that the liability insurance sector of the shipping industry can make a variety of contributions to the protection of the marine environment. This book can be seen as a tangible example of such continuing commitment. In other words, the raising of environmental consciousness is not a philosophical admonition, but an awareness that relates directly to improved ship management, maritime safety, the protection of the marine environment and a commercially sustainable industry.
The new edition has been substantially revised and, in many cases, rewritten. It should be noted that there has been a change in the title from Marine Pollution to Protection of the Environment. This is a deliberate change and is designed not only to indicate the shipping industry's expanded role in this area, but also to demonstrate that the subject has broadened significantly from its original oil pollution designation. Although one of the main tasks of ship operations is to prevent ship-source pollution, it is no longer simply an operational task left to those in charge of vessels, but a preoccupation that reaches the highest levels of management.
The Handbook has also been substantially reorganised into five parts covering: The Global Regime; The Preventive System; Damage to the Marine Environment; Liability and Compensation; and Offshore Energy Operations. In addition to the 17 chapters, Introduction and Conclusion, there are also a number of Appendices, illustrative Tables and Figures, as well as a Select Bibliography. It will be noted that some important information is duplicated and repeated. This is deliberate. Firstly, the various chapters are designed to stand on their own and, therefore, require that certain information is repeated. Secondly, some of the information is considered to be of such vital importance that it requires frequent repetition.
This work has been compiled from some of the enormous amounts of data and information on the subject that is available today. It is hoped that the book draws together such information in a reasonably concise and user-friendly manner once again, so that it can be read and absorbed by those who would benefit most from it - those involved in the day-to-day operations of shipping. The Handbook is neither designed nor intended to replace owners', charterers', government or international manuals, regulations or prescribed practices. On the contrary. It is hoped that it may lead to a clearer understanding, implementation and confirmation of such practices and regulations. This should, in turn, lead to increased knowledge and the voluntary will to achieve better operational results. Which in turn can lead to safer ships and cleaner seas.
The information contained in this Handbook was compiled during the period 2003 to 2005 and the law is stated as at 31 December 2005. Although the Handbook has been compiled with every care in order to ensure accuracy, and has also been reviewed by a number of highly skilled professionals, neither Gard P&I, Gard AS, nor the contributors, reviewers, or the principal author, can be held liable for any errors or omissions.
1 Edgar Gold, Oil Pollution - A Survey of Worldwide Legislation (Arendal: Assuranceforeningen Gard, 1971).
2 Edgar Gold, Handbook on Marine Pollution (Arendal: Assuranceforeningen Gard, 1985).
3 OPA'90 is discussed in some detail in Chapter 9 below.
4 Edgar Gold, Gard Handbook on Marine Pollution, 2nd Ed. (Arendal: Assuranceforeningen Gard, 1997).
5 UNCLOS will be more fully discussed in other parts of this Handbook.
6 These instruments will all be discussed in further detail in other parts of this Handbook.
7 For an up-to-date listing see: http://www.imo.org/conventions.
8 This will be further discussed below in this Handbook.
9 International Commission on Shipping, Ships, Slaves and Competition, Inquiry into Ship Safety (Newcastle, NSW: ICONS, 2000).
10 International Ship and Port Facilities Security Code (ISPS Code). Discussed below in this Handbook.
11 The EU is pursuing plans to develop regional liability and insurance schemes that would run counter to accepted international treaties. This is being vigorously opposed by the European Community Shipowners' Association (ECSA) See Lloyd's List (electronic) of 5 October 2005.
12 Judge Thomas Mensah in the 2005 Cadwallader Memorial Lecture on 4 October 2005.
14 See, for example "Oceans and the Law of the Sea: Report of the Secretary-General, 2001". UN Doc A/56/58/, 9 March 2001.
15 G. Pattofato, "Green Standards for Greener Shipping". BIMCO, BIMCO Review 2001 (BIMCO: London, 2001) p. 124.
16 "Shipping: Boom and Bust at Sea". The Economist, 20 August 2005, p. 43.
17 IMO Secretary-General E.E. Mitropoulos in his World Maritime Day 2005 address, "International Shipping: Carrier of World Trade", Annex 2, p. 3.
18 Robert Somerville, IACS Chairman in address to the Hong Kong Shipowners' Association on 5 December 2005. See Lloyd's List Maritime Asia, Winter 2005, p. 48.
20 John R. Dudley, Barry J. Scott & Edgar Gold, Towards Safer Ships and Cleaner Seas. A Handbook for Modern Tankship Operations (Arendal: Assuranceforeningen Gard, 1994); Ronald Wöhrn Gard Guidance to Masters (Arendal: Assuranceforeningen Gard, 2000); Edgar Gold, Gard Handbook on P&I Insurance, 5th Ed. (Arendal: Assuranceforeningen Gard, 2002). The subject has also been covered in a number of articles in issues of Gard News over a long period of time.