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EMSA

Places of Refuge

 

The issue of places of refuge for vessels in distress has entered into spotlight due to a number of incidents, such as the Erika (1999), the Castor (2000), the Prestige (2002), the Napoli (2007) and the Flaminia (2012).

The above mentioned incidents triggered a discussion as to whether or not the existing rules were sufficient to regulate the situation of a ship in need of assistance.

In consequence, in December 2003 IMO Guidelines on Places of Refuge for Ships in Need of Assistance were adopted (Resolution A.949(23)). The Guidelines recommend the coastal states to develop procedures that would enable an efficient and objective risk assessment in order to allow the ship into a place of refuge and contain elements that should be taken into consideration while making such assessments.

Vessel Traffic Monitoring Directive

In parallel, EU Directive 2002/59 of 27 June 2002 establishing a Community vessel traffic monitoring and information system was adopted.

According to the Directive, "ship in need of assistance" means, without prejudice to the provisions of the SAR Convention concerning the rescue of persons, a ship in a situation that could give rise to its loss or an environmental or navigational hazard. A "place of refuge" means a port, the part of a port or another protective berth or anchorage or any other sheltered area identified by a Member State for accommodating ships in distress.

Article 20 of Directive 2002/59 requires Member States to set up national plans to address the issue of places of refuge for vessels in distress. EMSA has participated in the process of evaluation of those plans: The first step required that Member States should agree to common principles in order to establish the national plans in accordance with Article 20. These principles were agreed to during the expert meeting organised by EMSA on the 8th May 2003. The next step required the Member States to send the national plans, including the legal transposition as well as the operational measures taken, to the European Commission by July 2003. Following an analysis of these plans, a report prepared by EMSA was sent to the European Commission in September 2003 where it was determined that additional information was required concerning the operational implementation of the national measures. The third step required visits to the Member States by the Commission, supported by EMSA, in order to evaluate how the MS applied their plans in practice and to collect information that was still missing. The visits were carried out in 2004-2006.

The place of refuge requirements were further amended by the Directive 2009/17. Articles 20(a) to (d) were added which provided for a more elaborate content of plans of places of refuge and a prominent role of competent authority in relation to the situation assessment and decision making.

In particular, 20a(3) of the Directive requires that "Member States shall publish the name and contact address of the authority or authorities referred to in Article 20(1) and of the authorities appointed for receiving and handling alerts."

Such list is available here: List of National Competent PoR Authorities.

Liability and Compensation

While there are no specific liability and compensation rules for Places of Refuge situations, general international rules on liability for specific types of pollution apply, as well as relevant national civil and administrative laws and international rules on limitation of liability for maritime claims. In particular in relation to liability and compensation, Directive 2009/20 on the insurance of shipowners requires all ships of above 300 GT coming to EU ports and all ship flying a flag of an EU Member States to have civil liability insurance covering claims which are subject to limitation pursuant to the 1996 LLMC Convention (as amended) and up to the liability limits laid down in this Convention. However, Art. 20(c) of the Directive 2002/59 (as amended) provides that "the absence of an insurance certificate (...) shall not exonerate a Member State from the preliminary assessment and decision (...), and shall not in itself be considered sufficient reason for a Member State to refuse to accommodate a ship in a place of refuge."

In 2004 EMSA contracted an independent consultant, the Scandinavian Institute of Maritime Law which prepared an analysis of the existing compensation mechanisms and their applicability to the places of refuge. The study was sent by the Commission to the European Parliament and the Council. In 2011 the Commission requested a second study from EMSA, focusing this time on compensation for damages to the third parties. In 2012 the Commission submitted to the Council and European Parliament a Report regarding liability and compensation for financial damages sustained by places of refuge when accommodation a ship in need of assistance.

Horizontal Assessment

Between 2012 and 2015 EMSA has been visiting Member States to verify the so called "implementation of art. 20+". At the beginning of 2014 EMSA has prepared a mid-cycle Horizontal Assessment of such visits and at the end of 2015 a desk study of national plans for places of refuge. The cycle finished in December 2015 and a new final Horizontal Assessment is being prepared by EMSA.

Table Top Exercise on Places of Refuge

Following the MSC Flaminia incident in 2012, the debate on Places of Refuge resumed momentum. In 2013 the Cooperation Group on Places of Refuge was created under the Chairmanship of the European Commission (the group consists of representatives of EU Member States + EEA). EMSA has been providing support to this group which translated in organising a number of Cooperation Group meetings in Lisbon in 2013 and 2014, organising three Table Top Exercises on Places of Refuge – the first one in November 2013 in The Netherlands (Rotterdam), the second in September 2015 in Malta and the third one in September 2017 in Norway (Horten)  – as well as serving as a secretariat to the Correspondence Group that drafted the EU Operational Guidelines on Places of Refuge in 2014.

EU Operational Guidelines on Places of Refuge

As a conclusion of the first Table Top Exercise, the need emerged for some instrument that would guide Member States in dealing with PoR situations. This led to the creation of a Correspondence Group who drafted the Guidelines in the course of 2014 with EMSA serving as a secretariat. The draft Guidelines were presented to the Commission in November 2014. An INF Paper to IMO in March 2015 highlighted the work in progress on the Guidelines at the time. In September 2015 the second Table Top Exercise on Places of Refuge was conducted with the main objective of testing the draft Guidelines and to provide amendments if necessary. As a result, some amendments were provided to the Annexes. The text of the Guidelines was approved at the meeting of the Cooperation Group on the 13 November 2015, with the understanding that the Guidelines will be start applying in their current form, allowing for experience in their use to contribute to their further refinement in a couple of years' time, possibly following another table top exercise. The Guidelines were also presented at the European Parliament, at a conference organised by a group on Rivers, Seas, Islands and Coastal Areas on 27th of January 2016 where the relevant maritime industry expressed their support and willingness to apply the Guidelines in practice.

The Guidelines aim at a robust operational process leading to well-advised and, where possible, quicker decision making. At the same time, they should contribute to promoting positive attitudes – within Governments, authorities, and the industry – for the purposes of Places of Refuge, in the interest of the protection of human life, maritime safety, security and the environment.

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