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Gard News 206, May/July 2012

Vessels in distress in French waters should now benefit from a quick decision regarding a port of refuge.



Amendment to the Code of Maritime Ports
In February 2012 the French government incorporated a European Directive into its national legislation which should avoid a vessel in distress being denied access to a port of refuge. The Directive forms part of the ERIKA III package adopted on 23rd April 2009.1

French Decree No. 2012-166 dated 2nd February 2012 has modified the Code of Maritime Ports, incorporating a new article R304-12 as follows:

" I. - When a vessel in distress needs assistance, the Maritime Prefect or, in the overseas territories, the delegate of the government for state action at sea can, in order to ensure the safety of persons or property or in order to prevent environmental damage, decide, after consultation with the Prefect of the Département (Land Prefect as opposed to the Maritime Prefect) or the senior officer of the defence and security zone, that the vessel will be hosted in a port that he will designate. He then orders the Port Authority to accept the vessel.

II. - The Land Prefect ensures the implementation of the decision as stated in I. He can, if necessary, authorise or order the vessel's movement into the port area.

When the port covers several departments, the competent Prefect is the Land Prefect where the installations of the port which will accommodate the vessel are located. He acts after having informed the Land Prefects of the other departments."

The Decree came into force the day after its publication and a French version can be found on the official site of the French government at http://www.legifrance.gouv.fr/affichCodeArticle.do?idArticle=LEGIARTI000025278138&cidTexte=LEGITEXT000006074233&dateTexte=20120308&

Hosting a vessel in distress
The Maritime Prefect has been given greater responsibility and the power of naming a port of refuge for a vessel in distress. The French government has chosen to entrust the Maritime Prefect with a power of decision rather than publishing a list of ports of refuge. The French administration has prepared a list of ports that may possibly be used as ports of refuge but this list will not be published. All ports listed have the possibility of being designated as a potential port of refuge. The choice for designation will vary according to numerous factors, specific to each case, but including the type of damage, weather forecast and cargo on board. However, it is difficult to know how these criteria will influence the final decision.

This has been a delicate question to deal with since the refusal of the Spanish ports to host the PRESTIGE after the casualty the vessel suffered in November 2002. Indeed, many port authorities would rather avoid hosting a vessel in distress that represents a danger of pollution and a risk for their economic viability. "Everybody says that we need ports of refuge but nobody wants them, it is a good thing that a state authority can now say: ‘the vessel is going there' and nobody can argue anymore", explained Hubert Ardillon, president of the French Association of Ship Masters (AFCAN Association Française des Capitaines de Navires).

In practice
The change represents a great improvement to the French Administrative Marine Dispositive, as the Maritime Prefect will be able to make a quick decision without veto power from other institutions. This should simplify the procedure of access to a port for vessels in distress. Prior to the introduction of Decree No. 2012-166, a port could deny access, often creating a much greater risk for the vessel to sink at sea.

However, the Code of Maritime Ports states that the Maritime Prefect needs to obtain the opinion of the Land Prefect or the senior official of defence and security zone in the first instance. The text does not specify the importance to be given to this opinion, whether this will be only consultative or more than a simple recommendation. This is of practical interest since the implementation of this decision is left to the Land Prefect, who will ensure a proper execution of the decision by the port, authorise or direct the movement of the vessel into the port, make sure that a berth is made available and order shifting of other vessels to different berths if necessary. There are nine Land Prefects for the English Channel, eight for the Atlantic coast and nine for the Mediterranean coast including Corsica.

There are three Maritime Prefects in France who can name a specific port. The Maritime Prefecture for the English Channel is based in Cherbourg, the second one, in charge of the Atlantic coast, is based in Brest and the third one, based in Toulon, is in charge of the Mediterranean Sea. In the overseas territories, the delegate of the government for the state action at sea will be able to name a port and order the port authority to give access to the vessel in distress.

Vessels in distress - How to proceed
For vessels in distress the primary contact remains the CROSS (Centres Régionaux Opérationnels de Surveillance et de Sauvetage), which act as Maritime Rescue Coordination Centres, on VHF channel 16 or 1616 from a mobile. Decree No. 2012-166 does not modify the procedure from the vessels' point of view, only the French administration procedure has been simplified and a vessel should obtain a quicker decision as regards the nomination of the port into which it will be directed. The CROSS will take steps to inform other relevant authorities, including the Maritime Prefect.

The CROSS is dedicated to maritime security and safety, supervision and rescue at sea, pollution and police. When a vessel in distress is located, the CROSS assists the Maritime Prefect in assessing the situation and relays any decision made by the Maritime Prefect to the vessel.

Decree No. 2012-166 simplifies the procedure for designation of a port or refuge but the Maritime Prefect can face some technical difficulties to identify the criteria that will make one port more suitable than another to host a vessel in distress. At the time of writing, the Maritime Prefectures are waiting to see whether instructions will be given by the French government on how to interpret the text. This is a huge responsibility left to the three Maritime Prefects currently in charge, Yann Tainguy, Bruno Nielly and Jean Pierre Labonne, all navy officers (www.defense.gouv.fr/marine/organisation/les-prefectures-maritimes), who will be expected to make a quick decision on matters which have a potentially significant political and economic impact and which may be criticised in the event of pollution of a French port.

1 See the article "ERIKA III - The third EU maritime safety package" in Gard News issue No. 196.

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