Standardized Testing

Standardized Testing
Introduction
Education systems and educators throughout the country are experiencing huge amounts of pressure to demonstrate effectiveness. Each state or country use different indicators for this purpose. Unfortunately, most these education indicators which most of the countries use have rendered fault results. Lately, if the standards of education and the results of an individual student is high most people believe that the school. Education system or the student is effective. Further, that if the standard test is too low, then the student, school of education system is ineffective. In either of these cases, because the yardstick used to measure the education standards is wrong, then we are apt to erroneous results.
One of the reasons why the standardized test is still used as a indicator of effectiveness in the education sector is deceptively simple. Educators and education sectors do not understand why this indicator remits wrong and erroneous results (Kelleghan, et al, 2012). A standardized test is an examination based test, where the results of the examinations are predetermined in a standard manner. The standardized test embraces two major tests; the achievement test and aptitude test. It predicts how best students will be performing in subsequent tests (Kelleghan, et al, 2012). Some of the common tests within the standardized test include; ACT and SAT-1. These two types of tests predict how students upon completion of upper school will perform in college.
In the recent past, the country has witnessed an upsurge of protests against the standardized test regime. Some of its critics hold that the test is literally strangling learners especially in public schools (Wiliam, and Dylan, 2010). Calls on the government to adopt another education indicator have gained momentum as most of them urge that the standardized test is worthless. Some of the reasons advanced against this test include; that since the learners are aware that the system is result oriented and that the results obtained determines their future lives, they will do all that is possible to pass the tests (Wiliam, and Dylan, 2010). Some of the extreme decisions that students may make include using and abusing performance drugs and cheating in examinations.
Furthermore, teacher’s and instructor’s contracts depend on their effectiveness. Because the instructors know that student’s scores affects their livelihoods, they also engage in unethical practices such as cheating and assisting students to pass examinations (Zwick, and Rebecca, 2013). Additionally, the standardized test does not provide educational value feedback and the best model of teaching or delivery. The results are usually held at marking and education offices for months before being released to the learners and teachers (Zwick, and Rebecca, 2013). Compounding this problem, the standard quality assurance does not provide means for improving tests obtained in a particular test.
The world is moving toward technological discoveries, innovation and creativity. Unfortunately, the standardized test does not value innovation and creativity. Some of the students write creative answers on the margins of their answer sheets, but the system does not appreciate anything written outside the allowed space (Bhattacharyya, et al, 2013). Additionally, the test does not value diversity. Learners taking the test have different cultural, thinking capacities, language proficiency, family background and experience, which are not catered by this test (Bhattacharyya, et al, 2013). The standardized test treats all these learners as equals and as if they are identical.
Moreover, the standardized test tend to extend privileges to those learners from well to do social-economic background. The companies providing these services, not only do they manufacture the courses, they manufacture test results for rich learners (Graf-Webster, and Erika, 2011). A rich learner is able to employ a special or qualified instructor, who will assist the learners do their assignments (Graf-Webster, and Erika, 2011. For the poor and less fortunate learners, the school lacks even the basics for learning and hence the poor learners do not get the kind of preparation that rich learners are provided with.
Standardized test focus most on the results of the test, and therefore, teachers focus on teaching tests on the expense of developmental learning. Most of the time, learners are taught on how to handle test, pass tests and taking the tests (Graf-Webster, and Erika, 2011. There is no time allocated by the teachers to teach new ideas or concepts. Further, the test system offers an artificial learning environment. Time for learning is strictly allocated, learners do not have time to socialize with other students, and they have no time to use learning tools, ask questions or talk with their colleagues (Graf-Webster, and Erika, 2011. It is a form of prison, which is not supposed to be the case. A good education system should prepare the learners to the real world.
Conclusion
The standardized tests have indeed reduced the potentials of our students, human learning and human experience. A learner may have knowledge in a certain area, but the learner may not receive an additional education to further his interest. Standardized test only provides an artificial and a false security to the teachers, students and parents. That if a student scores well in a particular subject, it is assumed that the student has knowledge in that area, which may not necessary be the case. Students have memorized formulas and tricks necessary to pass these tests. The test only creates losers and winners in our communities and therefore based on the above argument, the standardized tests is worthless.

References
Bhattacharyya, Sumita, Mary Junot, and Hillary Clark. “Can you hear us? Voices raised against standardized testing by novice teachers.” Creative Education 4.10 (2013): 633.
Graf-Webster, Erika. “Standardized Testing: Good or Bad for Assessment of Teacher Performance, Assessment of the Education System?.” (2011).
Kelleghan, Thomas, George F. Madaus, and Peter W. Airasian. The effects of standardized testing. Vol. 1. Springer Science & Business Media, 2012.
Wiliam, Dylan. “Standardized testing and school accountability.” Educational Psychologist 45.2 (2010): 107-122.
Zwick, Rebecca, ed. Rethinking the SAT: The future of standardized testing in university admissions. Routledge, 2013.

Public Communication 1 Essay

Public Communication 1
Name
Institution

Public Communication
A public forum is open to all expression that is safeguarded under the First Amendment. Parks, sidewalks, and streets are perceived open to public debate by tradition and are designated as conventional public forums. Notably, the aforementioned public fora have always been considered so because historically, they have been dedicated to debate and assembly. As such, it has been plainly established that in these public fora, the government’s ability to limit speech is very limited. For the First Amendment, the government, in committing public forums for expressive reasons, may take reasonable restrictions on who may utilize it (Krotoszynski, 2019). The Supreme Court, therefore, defines a limited public forum as a forum that the government sets aside for expressive activities. Like conventional public forums, content-based speech limitations in an assigned public forum are subject to stringent scrutiny.
For a long time, subways have been perceived as limited public fora or public fora based on public access and different uses. However, it is important to note that this does not mean that limitations on public discourse in subway platforms are doomed from the onset. If a substantial government interest such as hazardous crowding on subways is demonstrated, limitation on the number of people who are allowed to speak or even a complete ban may be upheld. In the evaluation of ISKCON v. Lee, it is evident that it is possible to make a sturdy argument that, subways, or at a minimum, subway platforms or corridors-are mainly for the movement of people, and as such, their intention is not to serve as conventional public fora (Barron, 2006). The regulations need to have neutral content, closely tailored, and demonstrate a substantial government interest. Also, reviewing the Young v. N.Y. Transit Authority case reveals that a regulation that safeguards passengers from extortion, aggravation, unwanted touching, and threats was sustained. The decision pertaining to Young’s case was supported by far-reaching factual scrutiny, encompassing interviews. It helped to verify that because of the congestion and the narrow corridors, begging in the subway platform was perceived as a hostile activity that served to intimidate passengers.
In light of this assessment of the use of subway platforms for public discourse, I recommend that the court affirms the city council’s denial. According to the city council, holding the rally at the subway may offend the passengers, interfere with the traffic, and even pose a fire hazard. I find the city council’s reasons to be justified. As stated earlier, the government can ban meetings on subways if they are considered hazardous; in this case, the risk of a fire hazard is posed. In reference to the ISKCON v. Lee case, it can be said that subways should be left to carry on their main purpose for which they were created-to facilitate the movement of people. Notably, passengers may perceive the rally on the platform as hostile, as evidenced in the Young v. N.Y. Transit Authority case. I believe that the Freedonia Federation to Free the Falcon organization has a variety of options to choose from to hold their rally aside from the subway. As such, they can select a venue on one of the many public platforms available; after all, the government can hardly put restrictions on these platforms.

References
Barron, J. A. (2006). Constitutional law: Principles and policy, cases and materials. LexisNexis/Matthew Bender.
Krotoszynski, R. J. (2019). The disappearing First Amendment. Cambridge University Press.
Nielsen, L. B. (2009). License to harass: Law, hierarchy, and offensive public speech. Princeton University Press.

E-Business Development

E-Business Development
Name
Institution

Avoiding Plagiarism
Plagiarism is the act of presenting the work or ideas of someone else as one’s own, with or without permission, by integrating it into one’s work without full acknowledgment. Simply put, plagiarism is a fraudulent act. It entails both stealing the work/ideas of someone else and lying about it later.
It is quite easy to find information for a majority of research papers. Still, it is not always simple to add that information into one’s writing without falling into the trap of plagiarism. However, there are several strategies an individual can apply to avoid plagiarism. One of the approaches entails planning one’s paper. This is where people plan how they are going to integrate their ideas with the external sources of information and how to balance these ideas (Plagiarism.org., 2017). Another approach pertains to paraphrasing. This entails putting information found into one’s own words. It is paramount to ensure that the text found is not copied verbatim more than two words in a row.
Quoting is yet another strategy. Utilizing external evidence is vital in academic writing, but there is a need to ensure that those sources are appropriately utilized. Therefore, when the ideas of another person are being used in a research paper, they must be quoted and correctly attributed to its rightful author. Another strategy relates to citing. Every time something is quoted or paraphrased in an essay, it is essential to include an in-text citation (or footnote citation) that identifies the actual author. Every in-text citation should match up to a full reference in the bibliography or reference list at the end of the paper (Calonia, 2020). This serves to provide details as to where the information originated from, making it possible for readers to situate the source for themselves.

References
Calonia, J. (2020, May 20). How to avoid plagiarism. Retrieved from https://www.grammarly.com/blog/5-most-effective-methods-for-avoiding-plagiarism/
Plagiarism.org. (2017, May 12). Preventing plagiarism when writing. Retrieved from
https://plagiarism.org/article/preventing-plagiarism-when-writing

Digital Evidence Research

Digital Evidence
The first step is to send a preservation of evidence letter. This entails putting all parties on notice that electronic evidence will be sought. This is important since the data stored on computers change each time a user loads a new program, saves a file, or does nearly anything on a computer. The second step is to gather backup tapes. This is a call for the provision of full backups that were made weekly and monthly (Balkin et al., 2017). This step is vital because backup tapes are one of the most fertile evidence sources. The next entails gathering the diskettes. Files and essential documents may also be saved in disks by users. Therefore, diskettes are critical because they are excellent sources of evidence. The fourth step involves asking each witness about computer usage. This is essential as it will lead to the revelation of data not disclosed by other methods (Pearson & Watson, 2017). The last step is to protect the chain of custody. This requires tracking evidence from its source to what is provided in court. Tracking is crucial since it ensures that evidence is not tampered with.
Upon entering the room where the computer was located, I took custody of the whole computer, encompassing floppy diskettes, and other removable media. I then went on to identify disk regions that may have evidence. Notably, evidence in a majority of computer forensic investigations lies in the user’s emails, internet history, documents, and any downloaded illegal images (Sremack, 2015). Therefore, I applied the use the Sifting Collectors application software. This software images only those areas of a disk that may contain artifacts, data, and other evidence.
After seizing the computer evidence, I then took my time to analyze it. This entailed tying it up to the digital crime. As such, I examined each item of evidence and established its relevance to the case at hand. I retained pertinent evidence and got rid of irrelevant evidence. I then drew up conclusions based on the relevant evidence found. I finished this process by writing a report.
References
Balkin, J., Grimmelmann, J., Katz, E., Kozlovski, N., Wagman, S., & Zarsky, T. (2017). Cybercrime: Digital cops in a networked environment. NYU Press.
Pearson, S., & Watson, R. (2017). Digital triage forensics: Processing the digital crime scene. Syngress.
Sremack, J. (2015). Big data forensics – Learning Hadoop investigations. Packt Publishing.

Criminal Justice Theory in Practice

Criminal Justice Theory in Practice

Question #1
It is fair to say that the criminal justice system is not always one hundred percent accurate when ruling out convictions. Over the past years, there have been several exonerations to free people who had been wrongly convicted. In the year 2018 alone, the Innocence Project was able to help 17 wrongly convicted individuals to gain their freedom after serving a total of 215 years (Innocence Project, 2018). Among them, Malcolm Alexander, who had been incarcerated at Louisiana’s Angola prison since 1980. He was wrongly identified by a rape victim and the evidence of the crime destroyed shortly after the trial. It was years later when new evidence was found, and a DNA test conducted was able to exclude Malcolm from the offense after serving 38-years in prison. All this would have been avoided if the witness/victim was evaluated properly when giving their testimony.
One of the ways to determine the credibility of eyewitness testimony includes the use of double-blind lineups. This is where both the victim and the administering officer are not aware of the suspects being brought in. It gives the witness a chance to view all suspects at once and then view them one at a time. It also aids in collecting confidence statements from the witness after the identification process. Unethical conduct among police or prosecutors may lead to the destruction of evidence, which is illegal. Police officers and prosecutors who engage in the destruction of evidence are punishable by imprisonment or formal probation. The criminal justice system can also increase the reliability of scientific evidence, such as DNA, by setting quality assurance parameters (Shaer, 2016). Laboratories that handle DNA forensics should be vetted and given strict policies to work under. Such measures will surely help reduce wrongful convictions while at the same time, exonerating innocently incarcerated individuals.
Question #2
Offender classification is often conducted under social, psychological, and biological backgrounds, as well as education. The same factors influence both true/false positives and false negatives, which are termed as prediction errors (Laws, 2020). False positives are errors whereby a prediction on an offender committing new crimes turns out wrong. This leads to the offenders being subjected to incarceration regardless of facts that prove their unlikeliness to indulge in further crime. On the other hand, false negatives take place when offenders are perceived to refrain from more crimes. In the long run, they commit crimes since they had no imposed restrictions.
True positive shows that the predictions made were reliable. The criminal justice system is aware that they cannot be error-free; hence they rely on the psychological, social, biological, and educational backgrounds to minimize the frequency of the errors. Psychological and biological factors are based on the individual’s mental history to evaluate any present patterns that may help with the judgment. Social factors rely on the perceptions of the society on the crime that has been committed (Laws, 2020). Some crimes such as murder or aggravated assault are perceived negatively by society; hence such an individual may face harsher punishment.
Education can also help determine an offender’s fate as different levels of education are perceived to establish the rule passed by the jury. Background checks are also conducted on individuals’ understanding of the community they are from and the state of their family. None of these factors may influence true/false positives and false negatives alone (Laws, 2020). The criminal justice system has to consider all or most to be able to make a reliable judgment.
References
Berk, R., Heidari, H., Jabbari, S., Kearns, M., & Roth, A. (2018). Fairness in criminal justice homework assignment risk assessments: The state of the art. Sociological Methods & Research, 0049124118782533.
Innocence Project. (2018). 2018: A record year in exonerations. Retrieved from https://www.innocenceproject.org/justice-2018/
Laws, D. R. (2020). Offender Classification and Registration. In A History of the Assessment of Sex Offenders: 1830–2020. Emerald Publishing Limited.

Information Assurance Overview

Information Assurance Overview
Name
Institution

Information Assurance Overview
The Information Assurance (IA) plan seeks to assure information and manage risks that pertain to the utilization, processing, storage, and broadcast of data or information and the systems and processes utilized for those purposes (Qian et al., 2017). Heavy Metal Engineering (HME) prioritizes the security of data. As such, the principles of information security (i.e., the CIA triad), inform our IA plan:
• Confidentiality-ensuring information is not revealed to unauthorized persons
• Integrity-maintaining and guaranteeing the preciseness and constancy of information over its whole lifecycle
• Availability-making sure that the information is available when and where it is required (Schou & Hernandez, 2018)
A plan or strategy for IA implementation
Essential to the HME strategy is offering a vigorous privacy and security program that cautiously considers data protection issues across services provided by the company, encompassing data submitted by clients.
Risk Mitigation Strategy
1. All facilities in the organization are safeguarded by:
• Intrusion detection
• Access control
• Video protection (CCTV)
2. Every HME staff employee is provided with a distinctive user account
3. Periodic training of employees-Network Administrators and System Administrators and individuals in charge of certain applications are regularly trained in best practices and how to mitigate security risks
4. All systems generate manufacturer-specific traceability logs which are often assessed to identify any unusual activities
An accrediting body
The accrediting body, in this case, is the National Institute of Standards and Technology
Incident response and disaster recovery plan
HME has several processes in place to respond to an incident and make sure that the disaster recovery plan is activated, which causes a rapid and effective re-establishment of services. Offsite and onsite backups, and secondary data centers’ availability, and support staff enable disaster recovery plans to be implemented rapidly and effectively in the event of a major disaster.

References
Qian, Y., Tipper, D., Krishnamurthy, P., & Joshi, J. (2017). Information assurance: Dependability and security in networked systems. Elsevier.
Schou, C., & Hernandez, S. (2018). Information assurance handbook: Effective computer security and risk management strategies. McGraw Hill Professional.

Pregnant Women and Drugs Essay

Pregnant Women and Drugs
Name
Institution

Pregnant Women and Drugs
In my opinion, we should make alcohol use by pregnant women a crime. Women who are pregnant and those trying to conceive are often advised to avoid alcohol totally until after the baby is born. According to Abel (2012), even drinking one glass of wine regularly can put the unborn baby at risk of several mental, developmental, and emotional disorders; it should be noted that these effects are generally irreversible. As such, I believe that the law should play an active role in protecting the rights of the voiceless unborn baby to have a healthy life once it is born. Therefore, making the use of alcohol during pregnancy illegal will serve to discourage this behavior, and as a result, the health of an unborn baby is protected.
We should also make the use of tobacco by pregnant women during pregnancy a crime. Wu (2018) states that smoking tobacco when one is pregnant augments the risk of health problems for developing babies, encompassing low birth weight, preterm birth, and congenital disabilities of the lip and the mouth. Moreover, essay smoking affects the body’s ability to absorb different minerals and vitamins, encompassing calcium and vitamins C and D. It should be noted that these nutrients are essential for the growth of the baby. Therefore, the banning of tobacco use during pregnancy will go a long way to ensure that the baby is not denied essential nutrients and that they can lead healthy lives once they are born.
If women were charged, I believe that a reasonable punishment for consuming the chemicals during pregnancy would be committing them to a rehabilitation center. In my opinion, most of these women are addicted, and addiction is a disease. Their inability to stop using drugs once they realize they are pregnant is an indication that they have no choice. Therefore, rehabilitation will seek to salvage them from addiction as well as allow them to find prenatal care.

References
Abel, E. (2012). Fetal alcohol syndrome and fetal alcohol effects. Springer Science & Business Media.
Wu, W. (2018). Pregnancy and birth outcomes. BoD – Books on Demand.

Governance of Arctic Marine Shipping

INTRODUCTION
The governance of shipping activities in the Arctic might be described as a “complicated
mosaic.” The 1982 United Nations Convention on the Law of the Sea (UNCLOS), often referred
to as the constitution of the oceans, sets out the overall legal framework for the regulation of
shipping. The Convention sets out coastal state legislative and enforcement powers over foreign
ships according to the maritime zones of jurisdiction laid out in the Convention. A fragmented
array of international agreements attempts to address specific challenges raised by shipping such
as marine pollution prevention standards, ship safety, seafarer rights and qualifications, and
liability and compensation for spills (Appendix A). In addition, the threats raised to/by ships
operating in ice-covered waters have led northern countries that border these waters, such as
Canada and Russia, to adopt national legislation specifically for Arctic shipping (Appendix B).
The term “governance” highlights a further complexity in connection with the range of
actors that affect shipping law, policy and practice in the Arctic. Governments and governmental
officials are not the only actors with a role in shipping development and management roles
(Rothwell & VanderZwaag 2006). Shipowners, cargo owners and insurers, among others, may
be involved in determining when and where shipping in the Arctic should occur and under what
conditions. Governance in shipping is characterized by efforts to promote harmonization and
uniformity in international maritime law. The reason for the global approach to shipping
governance is that by definition and function, shipping is essentially an international tool in the
service of global trade.
The standards for global shipping are by and large adopted at the international level.
The International Maritime Organization (IMO), a specialized agency in the United Nations
system, promotes safety, environment protection, trade and security in international shipping.
The IMO provides the machinery for the adoption of legal, technical and training standards for
most types of ships through four major committees: Maritime Safety Committee (MSC), Marine
Environment Protection Committee (MEPC), Legal Committee (LC), Technical Cooperation
Committee (TCC) and, more recently, the Facilitation Committee (FAL). In particular, the MSC
and MEPC have had occasion to consider Arctic shipping matters. Much of the technical work of
the Committees is conducted through sub-committees and inter-sessional correspondence groups.
Some of these bodies have or are currently considering issues that have direct application in the
Arctic, such as the Sub-Committee on Radiocommunications and Search and Rescue
(COMSAR) (which recently considered the establishment of new NAVAREAs, Navigational
Areas within the World Wide Navigational Service, in the Arctic) and the Sub-Committee on
Ship Design and Equipment (DE) (currently considering amendments to the Guidelines for Ships
Operating in Arctic Ice-covered Waters) (see below).
Composed of national delegations or members, in effect it is IMO member states that
establish these international standards. The IMO also acts as secretariat for most international
maritime conventions and facilitates their implementation through the adoption of numerous
codes and guidelines aimed at operationalizing international standards. However, international
conventions and related protocols become binding only on those states that choose to become
parties. States can still legislate the provisions of a convention or protocol without becoming a
party.
Other intergovernmental organizations work closely with the IMO in the governance of
international shipping (Table 1). For example, the International Labour Organization (ILO),
established in 1919, has played a seminal role in the establishment of minimum basic standards
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for seafarers’ rights. The United Nations Conference on Trade and Development (UNCTAD),
World Meteorological Organization (WMO), International Hydrographic Organization (IHO),
and Food and Agricultural Organization of the United Nations (FAO), among others, have also
collaborated with the IMO on shipping matters of common interest.
Table 1. Global intergovernmental shipping and related organizations
United Nations Secretariat, Division for PHD Thesis Oceans Affairs and the Law of the Sea (DOALOS)
Food and Agriculture Organization of the United Nations (FAO)
Intergovernmental Oceanographic Commission (IOC)
International Hydrographic Organization (IHO)
International Labour Organization (ILO)
International Maritime Organization (IMO)
International Maritime Satellite Organization (INMARSAT)
International Telecommunications Satellite Organization (INTELSAT)
International Telecommunications Union (ITU)
Organization for Economic Cooperation and Development (OECD), Maritime Transport
Committee
United Nations Environment Programme (UNEP)
United Nations Conference on Trade and Development (UNCTAD)
World Customs Organization (WCO)
World Meteorological Organization (WMO)

However, law-making and standard-setting in shipping are not the exclusive realm of
international diplomacy and maritime administration. A broad range of international industry,
labour and environmental non-governmental organizations (NGOs) play a critical role in
building the knowledge base necessary for the adoption of rules and standards. Industry is
broadly represented by organizations acting on behalf of shipowners, tanker owners, cargo
owners, insurers, salvors, port and harbour authorities, among others (Table 2). Industry provides
a pipeline to technical knowledge, management know-how and practical experience. Frequently,
an international standard first emerges or is updated in new industry practices before being
embraced in a proposal of a national delegation in an IMO committee. Worker or seafarer
interests are similarly represented by trade and labour union associations. Several international
non-governmental interests advocate the protection, preservation and conservation of the marine
environment. NGOs often have accredited or observer representation in international shipping
fora. In turn, these organizations receive regular and substantial inputs from their constituents,
frequently consisting of another layer of member organizations.
3
Table 2. Examples of international non-governmental shipping and related organizations
Baltic and International Maritime Council (BIMCO)
International Association of Classification Societies (IACS)
International Association of Marine Insurers (IUMI)
International Association of Dry Cargo Shipowners (INTERCARGO)
International Association of Independent Tanker Owners (INTERTANKO)
International Association of Lighthouse Authorities (IALA)
International Association of Ports and Harbours (IAPH)
International Association of Producers of Insurance and Reinsurance
International Cargo Handling Co-Ordination Association (ICHCA)
International Chamber of Shipping (ICS)
International Federation of Shipmasters’ Associations (IFSMA)
International Federation of Freight Forwarders Association (FIATA)
International Group of Protection and Indemnity Associations
International Maritime Bureau (IMB)(a specialized division of the
International Chamber of Commerce)
International Maritime Committee (CMI)
International Maritime Industries Forum (IMIF)
International Organization for Standardization (ISO)
International Salvage Union (ISU)
International Shipowners Association (INSA)
International Shipping Federation (ISF)
International Support Vessel Owners’ Associations (ISOA)
The International Tanker Owners’ Pollution Federation Ltd. (ITOPF)
International Transport Workers’ Federation (ITF)
The Mission to Seafarers
Oil Companies International Marine Forum (OCIMF)
Society of International Gas Tanker and Terminal Operators (SIGTTO)
Society of Naval Architects and Marine Engineers (SNAME)

An explanation of the governance of shipping would not be complete without noting
the critical role played by standard form contracting and related “good practices” developed by
industry, which are not necessarily within the framework of formal conventions. These standard
forms have been recognized and applied by courts around the world. Thus the governance of
international shipping, and especially standard setting, is much more diffuse than may be the
case with other ocean uses. Therefore the governance of international shipping in the Arctic can
be expected to occur at various international levels and with the participation of multiple layers
of actors, in addition to any initiatives that may be undertaken by the Arctic Council and coastal
states of the region.
This technical report provides a four part overview of governance of shipping in the
Arctic. International shipping conventions consist of instruments that provide (1) a legal
framework for inter-state rights and obligations (international public maritime law conventions),
and (2) a framework for the conduct of maritime transactions between private actors on selected
topics (international private maritime law conventions). This overview is conducted according to
4
these two major divisions. First, the role of international conventions and other instruments
relevant to Arctic shipping is described through a look at UNCLOS (Part I), maritime safety and
seafaring conventions, and maritime environmental protection agreements (Part II). Part III sets
out the international private maritime law framework, including carriage of goods by sea rules,
insurance, salvage, and liability and compensation agreements. In Part IV, a further survey of the
national experiences of Canada and Russia in regulating shipping in the Arctic is undertaken as
they are the two Arctic states that have adopted more stringent regulations than generally
applicable international standards. The chapter concludes with a list of key findings and further
research needs and priorities.
PART I: INTERNATIONAL LAW OF THE SEA FRAMEWORK
UNCLOS: The Overarching Legal Framework
The tension between coastal states and flag states has a long history. Flag states have
sought to maximize various freedoms of their flagged vessels, including freedom of navigation,
while coastal states have sought to maximize control over foreign vessels for security, fishing
rights, pollution prevention and other activities (Sebenius, 1984). The following discussion
describes the complex web of jurisdictional entitlements and limitations set out in UNCLOS for
the three categories of states concerned with shipping: coastal, flag and port (Vidas & Østreng,
1999).
Coastal State Jurisdiction and Control

The extent of coastal state legislative and enforcement control over foreign ships varies
according to the maritime zones set out in the Convention. Those zones include internal waters,
the territorial sea, the contiguous zone, the exclusive economic zone and possibly an extended
continental shelf where a country’s continental margin extends beyond 200 nautical miles from
the territorial sea baselines. Coastal states bordering international straits are substantially
restricted in controls that may be imposed over foreign transiting ships. Coastal states may also
exert greater control over foreign ships operating in ice-covered waters.
In UNCLOS, the determination of the seaward limits of these zones and jurisdictions is
based on distance from a combination of one or more of the low-water marks along the coast,
straight baselines and closing lines for bays methods (Arts. 3, 5, 7, 10, 57 and 76). With the
exception of the United States, the Arctic states have proclaimed straight baselines along most or
all of their Arctic coasts (Scovazzi, 2001, 69–84).
Internal Waters

Coastal states are granted full sovereignty and maximum jurisdiction over ships choosing to
enter internal waters. The only limitations are where the establishment of a straight baseline has
the effect of enclosing as internal waters areas which had not previously been considered as such,
5
in which case UNCLOS recognizes a right of innocent passage in those waters (Art. 8), and
where there is a historic regime of shared sovereignty over an area (Gulf of Fonseca Case,
1990/1992), both exceptional situations which preserve rights of passage. Sovereignty entitles
coastal states to exercise far reaching power over their internal waters. In these waters, coastal
states might prohibit entry of certain “risky ships”, such as those carrying radioactive wastes or
other hazardous cargoes, or they might impose “zero discharge” limits on particular ship-source
pollutants. The only likely constraint on the exercise of this power is the traditional customary
duty to grant refuge in sheltered waters to a ship in need of assistance, which has seen some
change recently, and for which the IMO has adopted guidelines to assist decision-making, as will
be seen below (Chircop & Linden, 2006).
In addition to coastal ports and harbours, UNCLOS allows various waters to be
designated as internal. For example, where a bay has natural entrance points not exceeding 24
nautical miles, a closing line may be drawn between the two low-water marks and the waters
enclosed become internal (Art. 10(4)). Historic waters and bays, which are exempt from the rules
for bays in the Convention, are also subject to the internal waters regime (Art. 10(6)). A coastal
state may also choose to draw straight baselines around a deeply indented coastline or where
there is a fringe of islands in the immediate vicinity of the coast. Waters enclosed would be
internal (Art. 7).
Exactly which Arctic waters may be claimed validly as internal has been contentious
(Kraska, 2007). For example, Canada enclosed its Arctic archipelago with straight baselines,
effective January 1, 1986, but the United States and other states protested against the internal
waters status claim (Franckx, 1993c, 103). The exercise of exclusive authority for a long period
of time and acquiescence by foreign states are two considerations in justifying historic waters
claims (Brubaker, 2005, 34).
Territorial Sea
Within a 12-nautical mile territorial sea, normally measured from baselines permitted by
UNCLOS, coastal states have full sovereignty, but jurisdiction over foreign ships is substantially
curtailed by the right of foreign ships to innocent passage. UNCLOS provides that passage is
innocent “so long as it is not prejudicial to the peace, good order or security of the coastal state”
(Art. 19 (2a)). Article 19 lists activities by foreign ships in the territorial sea that would be
considered non-innocent, e.g., undertaking research or surveys, fishing, and any act of wilful or
serious pollution.
UNCLOS limits coastal states’ authority to adopt laws and regulations applicable to
foreign ships transiting through the territorial sea. Domestic laws can be applied in relation to
safety of navigation and marine pollution control (Art. 21 (1)), but Article 21(2) prohibits coastal
states from imposing design, construction, crewing or equipment standards on foreign ships
unless giving effect to generally accepted international rules or standards. Article 22 allows
coastal states to designate sea lanes and traffic separation schemes for foreign ships, particularly
tankers, nuclear-powered ships and others carrying hazardous cargoes, to maintain the safety of
navigation. However, the coastal state must take account of recommendations of the IMO and
any channels customarily used for international navigation. As long as it does so without
discrimination, the coastal State may suspend temporarily innocent passage of foreign ships in
specified areas of its territorial sea when this is essential for the protection of its security (Art.
6
25(3)). Coastal states may only levy charges upon foreign ships passing through the territorial
sea for specific services rendered (Art. 26).
There is ongoing tension between coastal states wishing to maximize marine
environmental protection in the territorial sea and flag states wanting to maximize freedom of
navigation. For example, differences of opinion continue over whether a coastal state may
require prior notice and authorization as a precondition before allowing a foreign ship carrying
hazardous wastes to transit the territorial sea (Agyebeng, 2006, 394–395). Whether a coastal
state may impose more stringent pollution discharge standards on foreign ships operating in the
territorial sea than set out in the International Convention for the Prevention of Pollution from
Ships (MARPOL 73/78) has also been a point of contention (Molenaar, 1998, 201).
Five Arctic coastal states, Canada, Iceland, Norway, Russian Federation, and the United
States, have each claimed territorial sea limits to a maximum of 12 nautical miles; Denmark
(Greenland) has claimed 3 nautical miles.
Contiguous Zone
In a 12-nautical mile contiguous zone adjacent to the territorial sea (i.e., up to a seaward
limit of 24 nautical miles), coastal states are granted jurisdiction over foreign ships to prevent
infringement and to enforce violations of customs, fiscal, immigration or sanitary laws and
regulations committed in its territory or territorial sea (UNCLOS, 1982, Art. 33). This power
might be used by a coastal state to justify boarding and inspecting a foreign ship suspected of
carrying illegal immigrants.
Exclusive Economic Zone
In a 200-nautical mile exclusive economic zone (EEZ), measured from the territorial sea
baselines, coastal states may only adopt pollution prevention and control laws applicable to
foreign ships if in conformity with generally accepted international rules and standards
established through the IMO (UNCLOS, 1982, Art. 211(5)). UNCLOS does allow coastal states
to propose special discharge standards or navigational practices applicable to foreign ships in the
EEZ because of special ecological and traffic conditions. However, this requires IMO review and
approval (Art. 211(6)).
A coastal state has limited enforcement powers in the EEZ against foreign ships violating
applicable international rules and standards for preventing and controlling pollution. A coastal
state may only undertake physical inspection of a foreign ship where a violation has resulted in a
substantial discharge causing or threatening significant pollution of the marine environment (Art.
220(5)). Actual arrest and detention of a foreign ship is only allowed if a violation causes major
damage or a threat of major damage to the coastline, interests or resources of the coastal state
(Art. 220(6)). In such a case, the coastal state may only impose monetary penalties (Art. 230(1)).
The six Arctic coastal states (Canada, Denmark, Iceland, Norway, the Russian Federation
and the United States) claim 200-nautical mile EEZs in Arctic waters. However, Norway claims
a 200-nautical mile extended fisheries protection zone around Jan Mayen and a 200-nautical mile
fisheries protection zone around Svalbard. Figure 1 sets out the 200-nautical mile claims in the
Arctic Ocean. Inherent in the 200-nautical mile zone claims made by the littoral states of the
7
Arctic Basin (Canada, Denmark (Greenland), Norway, the Russian Federation and the United
States) is the dismissal of the so-called sector theory as a basis to claim offshore jurisdiction
(Churchill, 2001, 121–123). As opined by a leading law of the sea scholar, the sector theory
cannot serve as a root of title for the acquisition of sovereignty, particularly not to marine areas
(Pharand, 1988, 79).
Figure 1. Overview map of the Arctic Ocean and maritime boundaries
Note: The disputed area between Canada and Denmark (Greenland) in the Lincoln Sea is not shown on this map due
to its small area (see Appendix C).
Continental Shelf
Under Article 77(1) of UNCLOS, as well as customary international law, coastal states
“exercise over the continental shelf sovereign rights for the purpose of exploring it and
exploiting its natural resources.” There are three critical elements to this jurisdictional
entitlement: the legal definition of the “continental shelf”, the characterization of “natural
resources”, and the scope of “sovereign rights”.
8
The legal continental shelf is comprised of the seabed and subsoil of the submarine areas
beyond the territorial sea of the coastal state, to the outer edge of the continental margin, or to at
least 200 nautical miles from the coastal baselines, where the continental margin does not extend
to 200 nautical miles (Art. 76(1)) (Appendix C). The definition of the outer limits of the
continental shelf may extend significant distances beyond the 200-nautical mile limit of the EEZ.
The sovereign rights of the coastal state over these areas are exclusive and do not require any use
or occupation, or even any express legal declaration (Art. 77(2) & (3)), although the finalization
of the precise outer limits is subject to a process mandated under UNCLOS. Article 76(2) and
(4–6) set out the criteria for determining the outer edge of the continental margin beyond 200
nautical miles.
Annex II of UNCLOS established the Commission on the Limits of the Continental Shelf
(CLCS), comprised of 21 technical experts elected by state parties, to consider data and
information submitted by coastal states on their outer limit claims and to make recommendations
on the claim. Where the coastal state establishes the outer limits in accordance with the
recommendations of the CLCS, these limits shall be “final and binding” for parties to the
Convention. Coastal states are required to make their submissions within a prescribed timeframe
upon ratifying UNCLOS, and two Arctic states have already made submissions dealing with
parts of the Arctic region (Table 3) (Russian Federation, 2006b; Norway, 2006). Both the
Russian and Norwegian submissions include potential overlaps with claims of other Arctic states
(Appendix C; Figure 1). The CLCS does not engage in delimitation or resolution of such
conflicting and overlapping claims.
Table 3. National submissions to the CLCS for the Arctic Ocean
Arctic Ocean State Date of UNCLOS
Ratification
Deadline for Submission/
Date Submitted
Canada 7 November 2003 7 December 2013
Denmark (Greenland) 16 November 2004 16 December 2014
Norway 24 June 1996 27 November 2006
Russian Federation 12 March 1997 20 December 2001
United States Not a party —
The natural resources encompassed by the continental shelf regime include “mineral and
other non-living resources of the seabed and subsoil together with living organisms belonging to
sedentary species…” (UNCLOS, 1982, Art. 77(4)). Sedentary species are those which organisms
which, “at the harvestable stage, either are immobile on or under the seabed or are unable to
move except in constant physical contact with the seabed or the subsoil” (UNCLOS, 1982, Art.
77(4)). Article 77(1) refers to sovereign rights “for the purpose of exploring and exploiting” the
natural resources of the shelf. The term “sovereign rights” indicates a level of legal entitlement
which is greater than mere jurisdiction, but clearly less than the full sovereignty involved in a
territorial claim. As a result, coastal state claims to an extended continental shelf will affect only
those powers and functions expressly set out in the Convention. Also, Article 82 of UNCLOS
imposes a limit on the entitlement to the benefits of natural resources beyond 200 nautical miles
in some cases, imposing a graduated scheme of payments or contributions in kind based on
9
percentages of the “value or volume” of production. The payments are to be made via the
International Seabed Authority, and distributed on an equitable basis among states party to the
Convention.
The legal regime of the continental shelf does permit some limited interference with
navigational rights, incidental to the regulation and control of seabed activities, presumably for
safety or related purposes. Article 60 details these rights with respect to navigational and other
impacts resulting from artificial islands, installations and structures. Article 60(4) and (5)
provides, inter alia, for the creation of safety zones around such facilities, up to a maximum of
500 metres, and prohibits the establishment of artificial islands, installations and structures
“where interference may be caused to the use of recognized sea lanes essential to international
navigation” (Art. 60(7)). Article 79 addresses the issue of submarine cables and pipelines, and
preserves the rights of other states to lay cables and pipelines on the continental shelf, subject to
“reasonable measures” taken by the coastal state with respect to seabed activities and the
prevention of pollution from pipelines. The delineation of routes for pipelines and cables is
subject to the consent of the coastal state.
International Straits
Coastal states bordering an international strait retain very limited powers over foreign
ships because of their right to transit passage. States bordering straits cannot suspend passage
and may only adopt ship-source pollution laws applicable to foreign ships if in accord with
international standards (UNCLOS, 1982, Arts. 42 & 45). Sea lanes and traffic separation
schemes may be designated, but only with IMO approval (Art. 41).
The application of the international straits regime in the Arctic has been subject to
controversy. For example, Canada and the United States have disagreed over the status of the
Northwest Passage. While UNCLOS recognizes transit passage rights in straits used for
international navigation between one part of the high seas or an EEZ and another part of the high
seas or an EEZ, the Convention does not spell out the required degree of use for international
navigation to transform an area into a strait (Pharand, 1984, 91). If straight baselines in
accordance with Article 7 of the Convention are used to enclose areas of a strait, a right of
innocent passage may continue to exist where the waters had not previously been considered
internal (Art. 8).
Article 234
Of particular interest to Arctic coastal states is Article 234 of UNCLOS, which
recognizes their right to adopt and enforce special pollution prevention and control laws in icecovered areas, which has no analogous provision for any other marine region:
Coastal States have the right to adopt and enforce non-discriminatory laws and
regulations for the prevention, reduction and control of marine pollution from
vessels in ice-covered areas within the limits of the exclusive economic zone,
where particularly severe climatic conditions and the presence of the ice covering
such areas for most of the year create obstructions or exceptional hazards to
10
navigation, and pollution of the marine environment could cause major harm to or
irreversible disturbance of the ecological balance. Such laws and regulations shall
have due regard to navigation and the protection and preservation of the marine
environment based on the best available scientific evidence.
During the Third United Nations Conference on the Law of the Sea, this article was negotiated
primarily between Canada, the Russian Federation (USSR at the time) and the United States with
the purpose of providing for the adoption of higher international standards than permitted
elsewhere in the Convention (Nordquist, et al., 1991, 396). Clearly, the text of the article sets out
criteria for the exercise of this significant power. However, the lack of reference to the
competent international organization, i.e., the IMO, is particularly noticeable considering that
elsewhere in the Convention the coastal state is expected to consult other states and act through
the competent international organization, for example in relation to special mandatory measures
for special areas in the EEZ (Chircop, 2007, 200-201).
Article 234 raises other questions of interpretation. What is required to meet the litmus of
“ice covering such areas for most of the year”? For example, will even partial ice cover suffice if
there is an exceptional hazard to navigation? What is the significance of giving special coastal
state powers only in the EEZ? Some writers have suggested the EEZ limitation implies that
coastal states are given no greater powers than applicable to the territorial sea (McRae &
Goundrey, 1982), while others have supported a bestowing of much broader powers, in particular
the right to unilaterally adopt special ship construction, crewing and equipment requirements
(Pharand, 2007, 47). Application of Article 234 to international straits may also be questioned,
but it should be noted that Article 233 of the Convention which seeks to safeguard the legal
regime of straits does not exempt straits from the application of Article 234.
Flag State Control
Maritime states, or flag states, have a significant role to play in the governance of
shipping in the Arctic. UNCLOS bestows a central role for states to control ships flying their
flag, with each state allowed to fix conditions for granting its nationality to ships so long as there
exists a “genuine link” (Art. 91). Ships are allowed to sail under the flag of one state only (Art.
92). The flag state’s domestic laws dealing with technical, administrative, social and other
matters, for example, criminal law, would apply to those aboard its ships. A flag state is also
responsible for taking measures to ensure that its ships conform to generally accepted
international rules and standards in relation to safety of life at sea, including ship construction,
equipment and seaworthiness, manning, labour conditions and seafarer training, use of signals,
and communications to prevent collisions. Seafarers are required to observe the applicable
international regulations concerning safety at sea, the prevention of collisions, the prevention,
reduction and control of marine pollution, and maintenance of radio communications (Art. 94).
Flag states are required to provide for effective enforcement of international rules/standards
irrespective of where a violation occurs (Art. 217(11)).
The flag state is granted exclusive jurisdiction over its ships on the high seas with the
only exceptions being where UNCLOS itself or other international agreements provide otherwise
(Art. 92(1)). An example of an exception is where states agree to mutual boarding and inspection
schemes on the high seas through a regional fisheries management organization.
11
A state’s warships and other ships used only on government non-commercial service
enjoy sovereign immunity (Art. 236). In other words, the UNCLOS provisions on the protection
and preservation of the marine environment, including Article 234, do not apply to these vessels.
Although such ships may not be subject to investigation or prosecution by other states for marine
pollution violations, each state is required to ensure that its ships comply as far as practicable
with international standards.
Port State Control
When foreign ships are voluntarily in the port of another state, that state has broad
inspection and enforcement powers (White, 2007, 27). A port state may choose to investigate
and prosecute foreign ships for pollution violations not only in the port and internal waters but
also in the territorial sea, the EEZ and even on the high seas (UNCLOS, 1982, Arts. 218(1),
220(1)). A port state is obligated to comply with requests from other states for investigation of
illegal discharge violations (Art. 218(3)). If a port state determines that a foreign ship is
unseaworthy and threatens marine environmental damage, it may prevent the ship from sailing
(Art. 219). In addition to the provisions of UNCLOS, a global regime of agreements and
conventions establishes international standards in relation to ships visiting coastal state ports.
Although bearing the same title and having some overlap, there are differences between
port state control under UNCLOS and the regional memoranda of understanding (MOUs) on port
state control and port state control under MARPOL 73/78 and the International Convention on
Safety of Life at Sea, 1974 (SOLAS). MOU-based port state control consists of agreements
between maritime authorities (not states) in particular geographical regions for the purpose of
spot-check inspection of ships visiting their ports. The inspections are for ensuring compliance
with international instruments concerning ship safety, labour, training and pollution prevention
standards set out in the MOU and the inspection data is centralized in databases to which
member authorities have access, and which are used to track the compliance of a particular ship
and the record of violations by flag. Port state control in SOLAS and MARPOL 73/78, both of
which are enforced through regional MOUs, is a compliance control mechanism to enable those
conventions to be enforced effectively. These issues are discussed more fully below.
Maritime Boundaries in the Arctic
Lack of clearly delimited maritime boundaries in the Arctic for territorial seas and EEZs
is of potential concern for future shipping in three main ways. Ship operators may face
uncertainty over which national shipping laws are applicable in a disputed zone. In case of a
ship-source spill and damage within a disputed area, which state could make compensation
claims could also be contentious. Unresolved ocean boundaries may also delay offshore
exploration and development, such as for oil and gas, and for which shipping provides a
supportive role.
There are eight bilateral agreements between Arctic states delimiting maritime zone and
continental shelf boundaries (see Appendix C; Figure 1). Some Arctic states still have maritime
boundary disputes and they include Canada and the United States in the Beaufort Sea, Canada
and Denmark (Greenland) in the Lincoln Sea, and Norway and the Russian Federation in the
12
Barents Sea (Appendix C; Figure 1) (Brubaker, 2002). In addition the five Arctic Ocean coastal
states, Canada, Denmark (Greenland), Norway, the Russian Federation and the United States,
have potential overlapping claims to the continental shelf beyond 200 nautical miles (Appendix
C; Figure 1).
High Seas and the International Seabed Area
If transpolar shipping develops across the high seas of the Arctic, at least two main
governance issues would arise. Since Article 234 and corresponding special coastal state control
powers over foreign shipping would not apply to high seas areas beyond national 200 nautical
mile zones, transiting ships would only be subject to global shipping safety, security and
environmental rules and standards. Thus one issue is the adequacy of international shipping
standards for Arctic conditions. To increase marine environmental protection, Arctic states could
consider working through IMO in various ways. For example, they might seek to have the Arctic
high seas designated as a special area under MARPOL 73/78 in order to impose stricter than
normal standards for oil and garbage management and discharge, as will be seen below. They
could also seek to have IMO declare the Arctic high seas as a particularly sensitive sea area
(PSSA) where further shipping control measures might apply, such as navigational routing and
certain areas to be avoided (Koivurova & VanderZwaag, 2007). However, as will be seen below,
Arctic states would need to demonstrate how a PSSA and proposed protective measures would
provide protection of the marine environment from threats posed by international shipping.
A second issue is whether a regional approach towards shipping might be developed
(Jensen, 2008). For example, Arctic states could seek to develop a common policy towards
transpolar shipping and discuss ways to cooperate in ensuring “safe shipping” if it is to occur.
After the process of determining the seaward limits of extended continental shelves in the
Arctic on the basis of recommendations from the CLCS, it is possible that there will be
international seabed areas (the Area, i.e., beyond any national jurisdiction) that will be governed
by Part XI of UNCLOS (Macnab, 2006). The Area and its resources are the common heritage of
mankind and vested in mankind subject to a unique international licensing regime administered
by the International Seabed Authority, an international organization established by UNCLOS in
Jamaica (Art. 136). Although seabed mining in the Area is not considered commercially or
technologically feasible for many more years, prospecting licences in international seabed areas
in the Indian and Pacific Oceans have already been granted to large mining corporations. The
Authority is empowered to adopt regulations to ensure the protection of the marine environment
from mining activities (Art. 145) and has adopted Regulations on Prospecting and Exploration
for Polymetallic Nodules in the Area. Further regulations on prospecting and exploration for
cobalt rich crusts and polymetallic sulphides are being drafted. UNCLOS provides for the
accommodation of international shipping where the establishment of mining installations and
their safety zones might interfere with the use of recognized sea lanes essential to international
navigation or lawful access to particular maritime zones (Art. 147).
Various governance options have been suggested in the recent literature for the area
beyond national jurisdiction in the Arctic. They include establishment of a regional ocean
management organization to facilitate integrated management of future uses, including
navigation (Rayfuse, 2007) and a voluntary moratorium on new activities except for marine
scientific research (Rayfuse, 2008).
13
PART II: INTERNATIONAL PUBLIC MARITIME LAW FRAMEWORK
Introduction
Ships operating in the Arctic environment are exposed to a number of unique risks
besides the sea and glacial ice concentrations which pose a structural risk to ships. Poor weather
conditions and the relative lack of up-to-date bathymetry on charts, communications systems and
navigation aids are special hazards for mariners in the Arctic (Østreng, 1999). The remoteness of
the areas makes rescue or pollution clean-up operations difficult and costly. Extreme cold
temperatures may reduce the effectiveness of components ranging from deck machinery to
emergency equipment. When ice is present it can impose additional loads on the hull, propulsion
systems and appendages. Government ships in the Arctic region during the summer season may
be available to assist ships in need of assistance, but in a grounding a salvage tug may be
required, as well as pollution control and clean-up equipment. If the casualty is on fire, assistance
from another ship may not be available, and crew and passengers, in the case of a tourist ship,
may have to land on ice. There is an increased level of risk of marine casualty should the volume
of ship traffic increase from the current low levels in ice-covered waters.
In addition to safe operations of ships in Arctic waters, ships’ crews, unless they are
regularly trading into the Arctic, will require special attention as it can be expected that they are
generally unfamiliar with conditions in the region and the severe stresses these conditions
impose on them. This lack of experience among commercial ships’ officers has already been
blamed for an increasing number of casualties and violations of the international collision
regulations in sea areas other than the Arctic. Safe operation in such conditions requires specific
attention to human factors, such as protective clothing, training and competence in operational
procedures.
It can be expected that the international conventions establishing safety and
environmental rules and standards for international shipping, which have been mostly developed
with different operational conditions in mind, may have to be re-visited as international shipping
in the Arctic increases. In addition to international standards for ships and seafarers, the
regulation of marine safety in polar environments is also a right and responsibility of Arctic
states. As noted earlier, UNCLOS empowers states with coastal frontage in ice-covered areas to
adopt safety and environmental standards for shipping in their EEZs (Art. 234).
Maritime Safety and Seafaring Rules and Standards
The sinking of the Titanic after striking an iceberg in the northwest Atlantic serves as
reminder of the particular dangers faced by ships navigating in waters where ice is present.
Periodic reformulations and regular amendments have culminated in the current SOLAS 1974
regime. For the most part, international safety standards for shipping are formulated in the rules,
codes and procedures adopted within the framework of SOLAS (Appendix D). There are also
other conventions that set out safety standards and practices, including the Convention on the
International Regulations for Preventing Collisions at Sea, 1972 (COLREGS), the International
Convention on Load Lines, 1966 (Load Lines Convention), the International Convention on Safe
Containers, 1972 (CSC), the International Convention on Standards of Training, Certification
14
and Watchkeeping for Seafarers, 1978 (STCW), and the International Convention on Maritime
Search and Rescue, 1979 (SAR Convention) (Appendix D). Additional non-mandatory codes
and guidelines adopted under these instruments set out good practices (Boisson, 1999).
Today SOLAS is more than an acronym, and has become a concept capturing all matters
relating to international standards for safety and security at sea in all marine regions. SOLAS is
regarded as the most important of all international treaties concerning merchant ships. The first
SOLAS convention, drafted following the Titanic disaster of 1912, was adopted in 1914, a
second version was adopted in 1929 and a third in 1948. The 1960 SOLAS Convention was the
first major task for IMO, after its creation in 1958, and it was a considerable advance in
modernizing regulations and in keeping pace with technical developments in the shipping
industry. A completely new convention was adopted in 1974. This included all the amendments
accepted to that date and a new amendment procedure designed to ensure that technical changes
could be made within a specified period and without involving cumbersome diplomatic
processes.
The main objective of the SOLAS convention is to specify minimum standards for the
construction, machinery, equipment and operation of ships, compatible with their safety. Flag
states are responsible for ensuring that ships under their flag comply with SOLAS requirements
and a number of certificates are prescribed in the Convention as proof that this has been done.
Control provisions also allow contracting states to inspect ships of other contracting states if
there are clear grounds for believing that a ship and its equipment do not comply with the
Convention. This international inspection is known as port state control, discussed elsewhere in
this report. Like other IMO conventions, SOLAS applies to ships engaged on international
voyages.
The adoption of a convention, such as SOLAS, marks the conclusion of the first stage in
a long process. Before the convention becomes binding upon states which have ratified it,
individual contracting states must formally accept it into their national maritime regulatory
regime. Entry into force of a convention is often a protracted procedure. As an example, SOLAS
1974 came into force following acceptance by 25 states whose combined merchant fleets
represented not less than 65% of world tonnage. Other maritime conventions may require fewer
states and less tonnage to come into force. Most IMO conventions enter into force within an
average of five years following adoption. Appendix D outlines the status of ratifications of key
conventions discussed in this report by Arctic states.
International standards are constantly under review at the IMO. As noted earlier, the IMO
has a system of subsidiary bodies studying the substance of each convention in the light of
rapidly developing technology and changes in the characteristics of many traditional ship types
and equipment (e.g., life-saving and fire-fighting equipment standards) used in marine industrial
operations, including offshore oil and gas exploration and exploitation. Currently, amendments
to the SOLAS Convention, STCW and many other conventions and codes, are being developed,
promulgated and given dates for implementation. As international shipping increases in the
Arctic, it may be necessary for the IMO and Arctic states to undertake studies and tests on such
ships, equipment and techniques, which may result in further amendments to SOLAS and
national maritime legislation.
Consideration will also need to be given to the safe carriage of the diverse cargoes
expected on major international Arctic shipping routes. The carriage and care of dangerous
goods in the marine transportation mode is regulated by the International Maritime Dangerous
Goods (IMDG) Code, which is part of SOLAS, Chapter VII (IMO IMDG Code, 2006). It is
15
given obligatory effect for both cargo owners and carriers by national legislation of the
contracting parties to SOLAS. Chemicals covered by the IMDG Code may need to be reviewed
for the purpose of identifying any chemicals which may have a dangerous reaction if exposed to
prolonged extremely low temperatures during transportation in the Arctic.
The SOLAS Convention includes specifications for “passenger ships” and these are
under constant review and amendment by IMO, to provide for the maximum degree of safety. At
this time it does not appear that cruise ships have dedicated international construction
requirements for polar operations. Cruise ships, which are not classed as ice-strengthened, may
operate in the Arctic at certain times of the year and in areas of open water. Cargo ships and
tankers have been doing this for many summers. The international cruise ship industry has
initiated a Cruise Ship Safety Forum to develop design and construction criteria for new vessels
and to consider other safety issues (Lloyd’s Register, 2007). It would be expected that IACS and
IMO will become involved in rule-making for such ships capable of operating in ice-covered
waters. In January 2008, IMO adopted Guidelines on Voyage Planning for Passenger Ships
Operating in Remote Areas (IMO, 2008a). The Guidelines focus on maritime safety operational
issues, including navigation in ice-covered waters and emergency contingency planning and call
on passenger ships to refer to the Arctic Guidelines for recommended construction provisions,
equipment recommendations, and operational guidelines.
Carriage of liquefied natural gas (LNG) is covered by the International Code for the
Construction and Equipment of Ships Carrying Liquefied Gases in Bulk Code (International Gas
Carrier Code), adopted as a mandatory code under Chapter VII of SOLAS which covers carriage
of dangerous goods (IMO IGC Code, 1993). The IGC Code establishes various construction and
equipment standards, such as gas leak detection and alarm systems, for LNG carriers. The
American Bureau of Shipping and the Russian Maritime Register of Shipping recently
announced that they are jointly developing the classification rules for Arctic LNG carriers,
building upon their experience in the transport of gas in Canada, the United States and the Russia
Federation (ABS, 2008).
With regard to oil tanker construction, non-ice strengthened or lightly strengthened
tankers have operated regularly in summer conditions with open water or ice-breaker assistance
in areas of the Arctic. Interest in ice class tankers has been steadily rising as oil exports from
Russia’s northern regions have become increasingly viable. The ice class tanker fleet is expected
to grow by 18 million dwt by 2008 (ABS, 2007). Construction standards, including requirements
for double hull tankers under MARPOL 73/78 and national regulations, are governed by the
Arctic Guidelines. For the Arctic, regulatory authorities may require Polar Class vessels if they
are to operate beyond the open water season.
The COLREGS do not contain specific rules for ships navigating in ice-covered waters.
However, they cover a situation where a ship is constrained in its ability to manoeuvre due to
size, draught or other reason (COLREGS, 1972). This could apply to a ship manoeuvring in ice
and when unable to take action to avoid close quarters with another ship. In the future, if the
Arctic shipping season is extended and there is more open water navigation attracting more ship
traffic, COLREGS can be expected to assume more importance.
Navigation through ice places particular demands on a ship’s structure, for example,
when a ship rams ice and rides up on ice and when ice impacts on the hull. Polar Class ships’
stability concerns are covered from the design stage, but existing ships may require special
consideration. Also, navigation in the Arctic may pose a stability concern as ice, due to the
freezing of rain, snow and sea spray, accumulates on a ship’s superstructure. This may be
16
prevented by a reduction in the ship’s speed or an alteration of course. Wind velocity is also a
factor in ice accretion. It is common practice for the crew to beat off the ice with wooden mallets
and to take measures to reduce the additional top weight which may reduce a ship’s positive
stability. In Polar Class ships, the effect of icing is to be considered in the stability calculations
provided by the builder.
A ship’s speed is a vital factor when operating in ice as it affects the force of impact and
consequent damage. There is a useful formula which shows that the force of impact with the ice
may be calculated by multiplying the ship’s speed squared by the ship’s displacement in tons. It
is particularly dangerous for a large vessel to proceed at excessive speed through ice-infested
waters during reduced visibility or at night. According to the IMO Arctic Guidelines, all Polar
Class ships should be fitted with at least two speed and distance measuring devices.
When a ship suffers ice damage it should be able to withstand a degree of flooding and
still maintain positive stability as is required under the SOLAS Convention. All Polar Class ships
should be able to withstand flooding resulting from hull penetration due to ice damage and
should remain in a satisfactory condition of equilibrium after such damage. The IMO Arctic
Guidelines require that in the design of Polar Class ships, calculations should show that the
vessel will maintain positive stability when operating in ice in conditions causing the ship to roll,
pitch, heave or heel due to turning or contact with ice. A Polar Class ship capable of operating in
polar regions year-round, and ice-breakers of all classes, should be capable of maintaining
positive stability when riding up on ice and remaining momentarily poised with bow on the ice.
Arctic Guidelines
Generally, the contents of IMO safety conventions are not specific to Arctic shipping.
Nonetheless, requirements for double hulls for tankers and increased safety and communications
equipment systems for passenger ships and cargo ships as well as search and rescue
developments, will be effective for ships trading into, or transiting, Arctic waters. The IMO
recognized the need for recommendatory provisions additional to the requirements contained in
existing IMO instruments. In 2002, IMO approved non-mandatory Guidelines for Ships
Operating in Arctic Ice-covered Waters (IMO Arctic Guidelines, 2002), aimed at providing
additional provisions to existing regulations, in particular SOLAS (Jensen, 2008). Member
governments were invited to bring the Arctic Guidelines to the attention of shipowners, ship
designers, shipbuilders, ship repairers, equipment manufacturers and installers and all other
parties concerned with the operation of ships in Arctic ice-covered waters.
The Arctic Guidelines aim to promote the safety of navigation and to prevent pollution
from ship operations in ice-covered waters. Ice-covered waters are defined as those waters north
of 60o
latitude, as adjusted in Figure 2, and in which sea ice concentrations of one-tenth coverage
or greater are present and which pose a structural risk to ships (para. G-3.2). The Arctic
Guidelines emphasize the need to ensure that all ship systems are capable of functioning
effectively under anticipated operating conditions and of providing adequate levels of safety in
accident and emergency situations. The Arctic Guidelines define “ship” as “any vessel covered
by the SOLAS Convention” (para. G-3.22). This excludes from the area of application fishing
vessels, pleasure yachts, wooden ships of primitive build, cargo ships of less than 500 gross
tonnage, and naval vessels, but would include passenger ships and cargo ships of 500 gross
tonnage or more engaged in international voyages (Jensen, 2008).
17
Figure 2. Geographical scope of the IMO Arctic Guidelines (shaded area)
Source: IMO Arctic Guidelines, 2002
Not all ships entering the Arctic environment will be able to navigate safely in all areas at
all times of the year. It is the responsibility of the shipowner to select a Polar Class appropriate
for the ship’s intended service in polar waters. The Arctic Guidelines’ system of Polar Classes
designates different levels of capability (Table 4). In a complementary and parallel effort with
the Arctic Guidelines, the International Association of Classification Societies (IACS) has
adopted a set of Unified Requirements which use the class system of the Arctic Guidelines
(Table 4). In addition to general class rules, the unified requirements address essential aspects of
construction for ships of Polar Class (IACS, 2007). The Unified Requirements form part of IACS
member rules and apply to ships of member associations contracted for construction on and after
1 March 2008. The unified requirements are consistent with the Arctic Guidelines and are
incorporated by reference on technical matters such as hull and machinery standards not
addressed by the Arctic Guidelines (Jensen, 2008).
The Arctic Guidelines are structured in four parts. Part A provides construction,
subdivision and stability in damaged condition requirements for Polar Class ships. No pollutants
should be carried directly against the hull in areas of significant risk of ice impact. Operational
pollution of the environment should be minimized by equipment selection and operational
practice. Safety-related survival and pollution control equipment should be rated for a low
temperature environment and other Arctic conditions. Navigation and communications
equipment should provide adequate performance in high latitudes, in areas with limited
infrastructure and unique atmospheric interference.
18
Table 4. Polar Classes set out in the IMO Arctic Guidelines and IACS Unified Requirements
Source: IMO Arctic Guidelines, 2002; IACS, 2007.
Part B applies to Polar Class and non-Polar Class ships and includes recommendations on
fire safety, fire detection and extinguishing systems, life-saving appliances and arrangements,
and navigation equipment. The latter should conform to the requirements of SOLAS, Chapter V,
and are not additional to SOLAS. All Polar Class ships should be provided with an automatic
identification system (AIS).
Part C concerns ship operations, crewing, and emergencies. Part D covers provisions for
environmental protection and damage control. These parts are covered in greater detail below.
The Arctic Guidelines recommend that operational manuals be available to the ships’
personnel. The IMO may amend the International Safety Management Code for the Safe
Operation of Ships and Pollution Prevention (ISM Code), adopted under SOLAS, Chapter IX, to
include the operating and training manuals. The ISM Code provides a framework for the safe
management and operation of ships and for the prevention of vessel-source pollution (Gold et.
al., 2003, 226–228). The ISM Code came into force for all commercial vessels over 500 gross
tonnage and mobile offshore drilling units on 1 July 2002 as an amendment to SOLAS (IMO
ISM Code, 2002). The basic principle of the Arctic Guidelines is similar to that of the ISM Code.
To achieve certification under the ISM Code, a shipping company must document its
activities in manuals, educate its personnel in the ISM system of quality control, draft procedures
for its office and for its ships and crews, implement the system, do internal audits, gain
experience for external audits and receive a document of compliance for its safety management
system from their flag state and be subject to inspection by port state control (Anderson, 2003).
In ships trading to the Arctic, use of the manuals would be part of a ship’s safety management
system.
At the MSC’s seventy-ninth session, South Africa submitted on behalf of the Antarctic
Treaty Consultative Parties, a proposal to amend the Arctic Guidelines (IMO MSC, 2004). The
principal purpose of the proposal is to update and extend coverage of the Guidelines to include
Antarctic waters and include technological updates since they were adopted in 2002. At a recent
meeting of the IMO Design and Equipment Sub-committee, it was agreed to completely revise
the Arctic Guidelines and to establish a correspondence group under the coordination of Canada
(IMO DE, 2008).
19
The Arctic Guidelines have been criticized for various deficiencies. They include, among
others, lack of details on training for ice navigators, lack of a requirement that actual ice
navigational experience be a certification prerequisite for ice navigators, and limited provisions
regarding how to prevent and mitigate sea-spray icing of ships (Jensen, 2008). Guidance given
about towage in icy waters is also quite limited, for example, urging that all Polar Class ships be
capable of receiving emergency towing assistance. The Guidelines do not set out any specifics
about ship speed, watchkeeping during towing and safe methods of securement.
Standards for Seafarers in the Arctic and Maritime Labour Law Issues
The Arctic presents a particularly hazardous work setting. While some attention has been
devoted to ensuring that ships that operate under the harsh conditions mentioned earlier are
especially equipped and constructed, much less attention has been given to the operational or
“human” aspects, i.e., the conditions for the workforce that must live and work under these
extreme conditions. In addition to affecting the well-being of seafarers, the working and living
conditions for seafarers can affect the safety of ships and the protection of the marine
environment. It is vital that seafarers operating in Arctic waters possess knowledge and skills
necessary for navigation and that the working conditions are appropriate.
Both the IMO and the ILO set international standards for the seafarers’ competence and
their working and living conditions (Appendix D). In addition, the World Health Organization
(WHO) is responsible for some aspects of seafarers’ health (e.g., medical fitness for duties and
requirements for on board medical chests and medical guides). The majority of the international
standards are directed to flag states and apply to ships undertaking international voyages,
although some requirements are directed to countries in their capacity as maritime labour supply
states. The IMO addresses conditions in relation to seafarer competency and training and other
matters related to ensuring the safety of the ship and people on board mainly through STCW and
SOLAS. The STCW convention is in the process of revision, including with respect to issues
such as standards for medical fitness for duty and hours of work and rest. The ILO addresses
maritime labour conditions through international conventions and recommendations and other
guidance that sets standards for decent working and living conditions (e.g., hours of rest and
work, accommodation, occupational safety and health, wages, food, medical care) (ITWF, 2006).
Since 1920, more than 70 international instruments dealing with seafarers’ working conditions
have been adopted along with additional standards developed to address conditions in the fishing
sector. The majority of these maritime labour conventions (more than 35 in total, Appendix A)
and related recommendations have been consolidated in the Maritime Labour Convention, 2006
(MLC, 2006), which is expected to enter into force by 2011. A similar consolidation has taken
place in the fishing sector with the adoption of the Work in Fishing Convention, 2007 (ILO
Convention No. 188).
These organizations (IMO, ILO and WHO) have not adopted specific binding
instruments addressing Arctic or Antarctic shipping as distinct from the general requirements.
This means that the existing minimum standards would apply to ships flying the flag of states
party to these conventions and, de facto, would be enforced on non-party ships under the regime
of port state control inspection. The Arctic Guidelines also make recommendations on issues not
dealt with under SOLAS or STCW. The integrated approach adopted by the Guidelines goes
beyond design and equipping of ships and recognizes that safe operation in ice-covered
20
conditions “requires specific attention to human factors including training and operational
procedures” (IMO Arctic Guidelines, 2002, para. P-2.5).
Seafarer Training
The human factor plays a significant role in marine emergencies. Effective and safe sea
transportation in the Arctic requires that the seafarers be skilled in different aspects of ice
navigation. The issue of sufficient well-trained seafarers for Arctic navigation will be critical at a
time when the global shortage of skilled seafarers is expected increase. In particular, it is
expected that there will be an estimated shortage of up to 4,000 seafarers with ice experience and
training (Bivbere, 2008). In addition, it is also important to note that shipowners, operators or
others trading or expecting to trade in the Arctic develop an awareness and understanding of the
challenges that Arctic navigation can pose for their ships and for the seafarers working on those
ships.
As many as possible of the ship’s deck and engine officers should be trained in ship
operations in ice-covered waters. However, an area of concern is that ships on international
voyages through Arctic waters may have crew drawn from tropical countries possessing little
knowledge of the intricacies of ice navigation and little experience of living and working in cold
climates. Any minor operational mistake in such a hostile environment is a recipe for a disaster.
Accordingly, before a ship embarks on a journey via Arctic waters, the crew should have had ice
navigation and simulator training (Tucker et al., 2006; IMO Arctic Guidelines, 2002, Chapter
14). In addition, the crew should have exposure to ice breaking operations, cold weather cargo
handling, the effects of icing and ice build-up rate, ice-related services, survival and occupational
safety. Although the Guidelines are not comprehensive with respect to seafarer training in
respect of the Arctic, they do offer specific recommendations related to ice navigation, use of
radio equipment and firearms, and training manuals.
Safe navigation in icy waters depends much on the knowledge and skill of the ice
navigator. The Arctic Guidelines emphasize that all ships operating in Arctic ice-covered waters
should have at least one qualified ice navigator who should be available at all times to
continuously monitor ice conditions (Chapter 1.2.). The Guidelines stipulate that the ice
navigator training programme cover all aspects of knowledge, understanding and proficiency
required for operating a ship in Arctic ice-covered waters. Training should also cover recognition
of ice formation and ice characteristics; ice manoeuvring; use of ice forecasts, atlases and codes;
hull stress caused by ice; ice escort operations; ice breaking operations and effect of ice accretion
on ship stability (Chapter 14.2). Interestingly, the Guidelines require that the ice navigator
provide documentary evidence of having satisfactorily completed an approved training
programme in ice navigation. Currently, most ice navigation programs are ad hoc and there are
no uniform international training standards (IMO, 2001; Ice Navigation Courses, n.d.). The
Arctic Guidelines are the first international instrument to emphasize the need for specialized
training in ice navigation in respect of the Arctic. Recently, Finland submitted a proposal for ice
operation training for consideration by the IMO’s Sub-Committee on Ship Design and
Equipment to be considered with the current efforts to revise the Arctic Guidelines (IMO DE,
2007).
The Arctic Guidelines call for a minimum of two crew members to be trained in the use
of low frequency radio equipment (Chapter 14.3.2). In cases where firearms are carried, a
21
minimum of two crew members are to be cognizant of current firearm regulations and guidelines
and be trained in the use of shotguns or hunting rifles (Chapter 14.3.1). Training manuals
covering ship operations in Arctic ice-covered waters such as ice recognition, navigation in ice
and escorted operation are also required (Chapter 13.3.3). In addition, the manual is to contain a
summary of the Arctic Guidelines and annexes with instructions for drills and emergency
measures (Chapter 13.3.3).
The Arctic Guidelines emphasize the need to provide for emergency training and survival
skills for seafarers and appropriate cross-training of crew members (Chapter 13.3.4.). However,
the Guidelines permit changes to the standard procedures due to the peculiarities in Arctic
operations (Chapter 13.3.4.). Accordingly, the Guidelines lay down detailed rules in respect of
how evacuation drill scenarios, rescue boat drills, fire drills, damage control drill scenarios, and
launching lifeboats and rescue boats are to be conducted, incorporating variations so that
different emergency conditions can be simulated (Chapter 13.4). All ships’ officers and crew are
to be made familiar with cold weather survival by training or self-study of course materials or
publications. Guidance can also be drawn from the IMO Guide to Cold Water Survival (IMO,
2006), which focuses on passenger ships operating in cold water areas.
Seafarers’ Working and Living Conditions
The Arctic Guidelines only lay down general recommendations for accommodation
standards on board ships in Arctic waters. All personnel accommodations, public spaces and
equipment installed in them are to be designed and arranged to protect the occupants from
unfavourable environmental conditions and to minimize risk of injury during normal (including
ice transiting or ice breaking) operations and emergency conditions (Chapters 4.1 and 4.2). In the
event of an emergency and/or of extended ice entrapment, ships (Polar Classes 1 to 5) are to have
sufficiently available and reliable facilities in order to maintain a life sustaining environment
(Chapter 4.1.3). General reference is made to maintaining ventilation in working areas (Chapters
8.1.2 and 10.2), and provisions are included for personal and group safety kits and protective
clothing kits (Chapter 11).
Outside STCW or the ILO standards (ILO 180, 1996 and MLC, 2006), there do not
appear to be any special requirements for minimum hours of rest or maximum hours of work and
safe manning despite navigation under what could be regarded as especially hazardous
conditions. The general minimum requirements for seafarers working on a ship relating to
conditions of employment, accommodation, recreational facilities, food and catering, health
protection, medical care, welfare and social security protection as set out in the MLC, 2006 and
the predecessor ILO conventions (Appendix A), are also applicable to seafarers involved in
Arctic navigation (in international and domestic national waters) for states party to these
conventions.
Search and Rescue
There is a longstanding tradition to provide assistance to persons in distress at sea,
observed by both coastal state authorities and other ships in the vicinity of the persons in need of
rescue. This duty is frequently legislated by maritime states as a requirement for ships flying
22
their flags. The SAR Convention provides a system for the rescue of persons at sea and
cooperation among states for this purpose. The IMO has established thirteen major search and
rescue areas around the world, within which coastal states have designated search and rescue
regions. The SAR Convention requires parties to establish rescue coordination centres and subcentres, to establish ship position reporting systems and to expedite the entry of rescue units from
other states into their territorial waters. Arctic state parties to the SAR Convention must ensure
that rescue resources are available in the Arctic area under their jurisdiction during the shipping
season and should cooperate with each other as required.
To facilitate maritime safety communications, the IMO adopted the Global Maritime
Distress and Safety System (GMDSS). It is mandatory for all SOLAS Convention parties’ cargo
ships of 300 gross tons or greater and all passenger ships on international voyages. The Arctic is
considered as Sea Area A4 for GMDSS purposes. Some Arctic coastal states are responsible for
coordination of one or more navigational areas, known as NAVAREAs, within the World Wide
Navigation Service (Table 5). NAVAREAs are navigational areas within the World Wide
Navigational Service designated for the issue of navigational warnings and related maritime
safety information within the GMDSS. Recently, the IMO’s Sub-Committee on Communications
and Search and Rescue (COMSAR) endorsed the creation of Arctic NAVAREAs up to 90
degrees North (Figure 3) proposed by a joint IMO/IHO/WMO group and approved by the MSC
(IMO COMSAR, 2007; IMO MSC, 2007). Further, coastal states are responsible for the
promulgation of maritime safety information in navigable waters within those areas. METAREA
(meteorological information) Issuing Service providers in Canada, Norway and the Russian
Federation were identified, with the United States and Denmark agreeing to be Preparation
Service providers for designated areas (IMO COMSAR, 2008). METAREAs are meteorological
areas corresponding to the NAVAREAs defined by the IMO. The new areas should be fully
operational 24/7, bearing in mind that portions of the NAVAREAs will not be navigable during
certain times of the year. Discussions are now underway with commercial satellite service
providers concerning transmission and monitoring of warnings (IMO COMSAR, 2008).
Table 5. Arctic NAVAREA coordinators
Arctic
NAVAREA
Coordinator
XVII Canada
XVIII Canada
XIX Norway
XX Russian Federation
XXI Russian Federation
23
Figure 3. Arctic NAVAREAs
Source: IMO COMSAR, 2006, Annex 1.
Marine Environmental Rules and Standards
Onboard Waste Management and Operational Ship-Source Pollution
Over the past five decades the management and discharge of operational wastes on board
ships has been a major global concern for the international community (Gold, 2006). As part of
their normal operations ships generate a wide variety of wastes including waste oil, oily water
from tanker operations, waste engine oil, noxious liquid substances, sewage and garbage,
generally resulting in pollution of the coastal and marine environment. The old habit of direct
discharge into the marine environment is long gone, as onboard waste management is now a
regulated activity.
The impact of ship-source pollution may be exacerbated in semi-enclosed seas like the
Arctic Ocean. Geography imposes hydrological limitations, in effect trapping the wastes,
including non-biodegradable wastes in the region’s marine environment for decades. The
presence of ice and very cold temperatures for much of the year are likely to contribute to longterm presence of ship waste discharged in the Arctic. It is therefore imperative that emphasis is
placed on prevention of ship-source pollution (Vidas, 2000; National Research Council, 2001)
and proper waste reception (DNV, 2006).
24
Adopted under the auspices of the IMO, the International Convention on the Prevention
of Pollution from Ships, better known as MARPOL 73/78, establishes a system of international
standards for onboard multi-waste management and eventual discharge (MARPOL, 1973/78;
IMO, 2002). MARPOL can be expected to play an important role in the protection of the Arctic
marine environment. Mandatory technical rules and procedures of MARPOL are found in the six
annexes which respectively deal with the prevention and control of pollution by oil (I), noxious
liquid substances (II), harmful substances in packaged form (III), sewage from ships (IV),
garbage from ships (V), and air pollution from ships (VI). MARPOL does not totally prohibit the
discharge of wastes in the marine environment, a point worth noting when considering the
protection needs of the sensitive Arctic marine environment.
Not all state parties to MARPOL are necessarily parties to all the annexes. When a state
becomes a party to MARPOL, it effectively becomes a party to both the convention and the first
two annexes, whereas the other annexes are optional. Non-party states to one or more of
Annexes III to VI (see Appendix D) consequently are not required to enforce the standards of the
latter annexes to their ships.
Perhaps the most significant annex for the protection of the Arctic environment is Annex
I. Annex I requires that the oily ballast discharge by an oil tanker must occur more than 50
nautical miles from the nearest land and must not exceed 30 litres per nautical mile. The total
quantity of oil discharged must not exceed not exceed 1/15,000 of the cargo carrying capacity
(for old tankers) and 1/30,000 of total cargo carried (for new tankers) irrespective of whether the
oil is persistent or non-persistent. An oil record book has to be maintained to record all
movement of cargo oil and residues from loading to discharging, and including tank-to-tank
transfer operations on board. Annex I also establishes a 15 ppm discharge limitation on oily bilge
water from oil tankers, as well as from other ships.
A major concern with the oil trade is single-hull tankers. Amendments to MARPOL in
1992 introduced a mandatory requirement of double hulls for new oil tankers and a phase-in
period for existing tankers. The phase-in period was further expedited through 2003
amendments. Other revisions to Annex I establish higher standards for new ships including
double bottoms for pump rooms and accidental oil outflow performance to provide better
protection against oil pollution in cases of strandings and collisions. Also of interest to the Arctic
is the proposal of Norway, on behalf of the 28th Consultative Meeting of the Antarctic Treaty in
2005, to amend MARPOL 73/78 Annex 1 to introduce a prohibition on the carriage of heavy
grade oil as cargo and fuel oil in the Antarctic Sea (IMO MEPC 54, 2006). This proposal has
raised concerns on the part of the International Council of Cruise Lines (IMO MEPC 56, 2007a).
Annex IV sets out sewage regulations that apply to ships of 400 gross tonnage or more,
or ships that are certified to carry more than 15 persons. Sewage may be discharged at a distance
of more than three nautical miles from the nearest land when a ship has an approved treatment
system and the sewage discharged is comminuted and disinfected. Sewage which is not
comminuted and disinfected may be discharged at a distance of more than 12 nautical miles from
the nearest land if the ship is proceeding at not less than 4 knots and the discharge is not
instantaneous but at a moderate rate. Coastal states may impose less stringent sewage discharge
limits. For example, the Canadian Arctic Shipping Pollution Prevention Regulations (ASPPR)
permit the discharge of sewage, defined as “human or animal waste generated on board ship and
includes wastes from water closets, urinals or hospital facilities handling fecal material,” without
regard to distance from land (Canada, 1978a, Reg. 26).
25
Annex V, while prohibiting the disposal of plastics into sea, still allows ships to discharge
some garbage generated by normal operations of a ship and depending on the distance from land.
For example, ships are allowed to dispose of packing materials more than 25 miles offshore, and
paper, rags, glass, metal and bottles if beyond 12 miles. All ships of 400 gross tonnage and
above, and every ship certified to carry 15 persons or more, must keep a garbage record book
and record all disposal and incineration operations. A garbage management plan is also required.
IMO guidelines for the implementation of Annex V urge that a preference be given to disposal of
garbage at shore reception facilities. IMO is presently undertaking a comprehensive review of
Annex V and recommendations for further action can be expected.
Annex VI, which sets limits on sulphur oxide and nitrogen oxide emissions from ship
exhaust and prohibits deliberate emissions of ozone depleting substances, is also undergoing
major review. The current Annex includes a global cap of 4.5% m/m on the sulphur content of
fuel oil, while in special sulphur oxide emission control areas (SECAs) the sulphur content must
not exceed1.5% m/m. The MEPC at its 57th Session (31 March – 4 April 2008) approved with a
view to circulating for subsequent adoption at its 58th Session in October 2008 draft amendments
to Annex VI which would impose stricter air pollution standards, including a phased reduction in
sulphur content of any fuel oil used on board ships (IMO MEPC 57/21, 2008).
The IMO is also actively considering ways to reduce greenhouse gas emissions from
sulphur. The MEPC at its 57th Session decided to re-establish the Intersessional Correspondence
Group on Greenhouse Emissions from Ships with a mandate to further consider possible control
measures with a final report to be presented to the MEPC’s 59th Session (IMO MEPC 57/21,
2008). Where the general ship discharge rules set out under the various annexes are not sufficient
for the protection of sensitive areas, MARPOL Annexes I, II and V provide for the designation
of special areas by the IMO. Special area is defined as “… a sea area where for recognized
technical reasons in relation to its oceanographic and ecological conditions and to the particular
character of its traffic, the adoption of special mandatory methods for the prevention of sea
pollution by oil, noxious liquid substances, or garbage, as applicable, is required” (IMO Special
Area Guidelines, 2002). The Antarctic area (defined as south of 60o
latitude) is designated as a
special area under Annexes I, II and V. The effect of special area designation is a higher standard
for discharges. Thus, in the Antarctic area an Annex I amendment made in 2004 (Regulation 15,
in force on 1 January 2007) prohibits any discharge into the sea of oil or oily mixtures from any
ship. This zero oil discharge standard, which applies to all ships irrespective of tonnage while in
Antarctic waters, is higher than for other special areas such as the Baltic.
Special area designation entails an amendment to the relevant MARPOL 73/78 annex. A
major condition for the designation of special areas is an undertaking by regional coastal states in
the special area designated to provide reception facilities in their ports for the wastes concerned.
For example for the purposes of Annex I, Mediterranean, Black Sea and Baltic Sea states
undertook to “ensure that all oil loading terminal and repair ports within the special area are
provided with facilities adequate for the reception and treatment of all the dirty ballast water and
tank washing water from oil tankers” and for those ports to “be provided with reception facilities
for other residues and oily mixtures from ships” (MARPOL 1973/78, Annex I, Reg. 10 (7)(a)(i)
and Reg. 12). These facilities must have the capacity to ensure there is no undue delay. The
special area designation does not take effect until the states in the special area inform the IMO
that the port reception facilities are in fact established. This has been a concern in some marine
regions, where the establishment of port reception facilities did not occur until many years after
the special area designation occurred (Chircop, 2005). Should MARPOL 73/78 special area
26
designation be considered for Arctic waters, it will be important for Arctic states to consider
what reception facilities may need to be developed in their ports to ensure compliance with the
designation.
The Arctic would likely satisfy at least the first two conditions for special area
designation, namely oceanographic and ecological, if not also ship traffic conditions, as set out in
the IMO Guidelines for the Designation of Special Areas under MARPOL 73/78 (IMO Special
Area Guidelines, 2002). The physical conditions of the Arctic, such as restricted hydrology and
ice conditions, “may cause the concentration of harmful substances in the waters or sediments of
the area.” The ecological conditions in the Arctic include both marine and non-marine species
(e.g., polar bears, birds), habitats, migratory routes, and fragile coastal and marine ecosystems. In
addition, the indigenous peoples of the Arctic depend on the land and resources of the region for
cultural reasons and subsistence and would require alternative sources of livelihood should their
resource base be impaired. With regard to ship traffic conditions, it would need to be
demonstrated that “[T]he sea area is used by ships to an extent that the discharge of harmful
substances by ships when operating in accordance with the requirements of MARPOL 73/78 for
areas other than special areas would be unacceptable in the light of the existing oceanographic
and ecological conditions in the area.” Although at this time ship transits through the Arctic
Ocean are relatively few, it is arguable that the threat is not posed by numbers as much as by the
nature of the threat, for example the potential discharge of oil or oily waste as may be permitted
by MARPOL in an environment that is very sensitive to even the smallest of discharges (AMAP,
2007, 9).
The IMO Arctic Guidelines play a potentially important role in complementing
MARPOL. The Guidelines recognize the lack of repair and waste reception facilities,
communications limitations, unique navigational and environmental hazards and limited
response capabilities in Arctic ice-covered waters (IMO Arctic Guidelines, 2002, Chapter
16.1.1). In effect, in many parts of the Arctic a ship is likely to find itself on its own with limited
prospects of timely assistance when in need.
The London Convention 1972 and its 1996 Protocol govern ocean dumping from ships
and of ships in the Arctic. “Ocean dumping” refers to wastes and other matter loaded for
dumping. It excludes wastes from normal ship operations. The London Convention takes a
permissive approach to ocean dumping and just about anything may be dumped except those
wastes listed on a “black list” pursuant to a national ocean dumping permit. The 1996 Protocol
adopts a precautionary approach whereby only wastes listed on a global “safe list,” such as
dredged material, fish wastes, organic wastes of natural origin, and ships from which hazardous
materials have been removed, may be disposed of subject to a waste assessment audit and a
national permit (VanderZwaag & Daniels 2008).
Contingency Planning for Accidental Oil Pollution
The sensitivity of the Arctic to pollution from oil and other hazardous substances
underscores the need for preventive measures to avoid accidents and incidents that could release
such substances into the marine environment. At this time there does not appear to be a
capability anywhere for the effective removal of hydrocarbon pollutants from ice-infested
waters, although some experiments have taken place. The Arctic Oil and Gas Assessment 2007
concluded that oil spills are the largest threat to the marine environment (AMAP, 2007, 24). In
27
addition to international regulations aimed at preventing pollution from indiscriminate waste
discharges, poor ballast waters management and oil transport, the IMO has adopted an
instrument aimed at promoting international cooperation in contingency planning and response.
The International Convention on Oil Pollution Preparedness, Response and Co-operation is in
force, and all Arctic states are parties (OPRC Convention, 1990). In 2000 a protocol on
hazardous and noxious substances (HNS) was adopted and entered into force in 2007
(OPRC/HNS Protocol, 2000). These instruments are particularly relevant for Arctic shipping,
where incidents may occur in remote locations and coastal state assistance might not be readily
available.
OPRC state parties are required to establish measures for dealing with oil and HNS
pollution incidents, either nationally or in co-operation with other countries. Ships and offshore
installations within the jurisdiction of Arctic state parties must have onboard oil pollution
emergency plans (SOPEP), including a plan for responding to ice damage, which are to be
coordinated with national response systems for prompt and effective response. There should be a
written procedure to effect damage repair and mitigate pollution. Crews should be exercised in
damage control and materials for this purpose should be on board. Ships have a duty to report
pollution incidents to coastal authorities. OPRC also calls for the establishment of stockpiles of
oil spill combating equipment, the holding of oil spill combating exercises and the development
of detailed plans for dealing with pollution incidents. State parties have a duty to provide
assistance to other states in pollution emergency situations.
The Arctic Council established the Emergency Prevention Preparedness and Response
(EPPR) Working Group to provide a forum for regional governments and indigenous peoples
(Permanent Participants) to cooperate in dealing with environmental threats from accidental
pollution. Operating under the lead country principle, the specific objectives of the EPPR are to:
• Improve prevention measures aimed at reducing accidents in the Arctic, including source
control management programs,
• Improve emergency preparedness programs at local, national, regional and international
levels to ensure they are commensurate with the level of risk that exists, including
arrangements for mutual assistance, and
• Improve response capabilities so that they are commensurate with existing threats
(Transport Canada, 2007).
While the EPPR is consistent with the expectations for cooperation under the OPRC, it is not a
response agency and has served as a forum for exchange of information and conducting projects.
The EPPR Working Group has noted the need to increase communication within the Oil
Pollution Preparedness, Response and Cooperation (OPRC)/OPRC-HNS Technical Group
(under IMO) and to share information in such areas as dispersant application, waste removal and
treatment, in-situ burn up, and spill response in ice and snow conditions (EPPR, 2007).
Several Arctic states have joint contingency planning arrangements. They include, among
others, the Canada/United States Joint Marine Pollution Contingency Plan, most recently revised
in 2003 and having as Annex 4, CANUSNORTH for the Beaufort Sea area (Canada/United
States, 2003), and the Canada/Denmark Agreement for Marine Environmental Cooperation
(Canada/Denmark,1983), which includes annexes for responding to shipping and offshore
hydrocarbon spills (Environment Canada, 2006).
28
Anti-fouling Substances
Ships use anti-fouling systems to prevent algae and molluscs, or other marine organisms,
from attaching themselves to the hull below the waterline, thereby slowing down the ship and
increasing fuel consumption. These anti-fouling systems can be any coating, paint, surface
treatment, surface or device that is used on a ship to control or prevent attachment of unwanted
marine organisms. One of the most common systems used, anti-fouling paint, contains
substances that can harm human health and marine species. Tributylin (TBT), an active
ingredient in certain anti-fouling paints, is considered to be the most toxic human-introduced
substance in the marine environment. It became widely available in Canada and the United
States by the 1960s and in other countries in the 1970s. In addition to its concentration in
hotspots such as ports and harbours, and in semi-enclosed seas such as the Baltic, it has also been
traced in ocean-going highly migratory species, suggesting continued contamination in the open
ocean.
TBT contamination is arguably of potential concern for the Arctic waters and species. It
has been traced and monitored in Iceland’s sub-Arctic waters and in the harbour porpoises on the
west coast of Greenland (IMO MEPC, 2006).
In 2001, the IMO adopted the International Convention on the Control of Harmful AntiFouling Systems on Ships to combat use of TBT (AFS Convention, 2001). The Convention will
enter into force on 17 September 2008. Although several Arctic Council members regulate TBT
use, only Denmark, Norway and Sweden are parties to the Convention. As of 1 January 2008, the
European Union introduced a complete ban on the use of TBT-based paints, both on EU ships
and ships visiting European ports (EC, 2003). The IMO has suggested that anti-fouling paints are
not necessary for icebreakers in deep polar waters as ice action scrapes off fouling organisms
(IMO MEPC 55, 2006), but it should be noted that most vessels in polar waters are not
icebreakers.
Ballast Water Management
The majority of the world’s ships carry some form of “ballast” to ensure ship stability
and structural integrity, particularly, when they are not fully laden with cargo. Since the late
1800s ballast has taken the form of sea-water pumped aboard (taken up) in a ship’s ballast water
tanks when cargo is unloaded in port and discharged in the next port when new cargo is loaded
(or en route when the ship’s safety and structural integrity requires this adjustment). This means
that port or near coastal water from one place in the world is transferred by a ship throughout the
world (Dudley et al., 1994; Gold, 2006).
UNCLOS recognizes that international trade using ships has resulted in the movement of
“alien species” (living organisms and pathogens) attaching either to ships’ hulls or equipment
(hull fouling) and in ships’ ballast water (McConnell, 2003; Doelle et. al., 2007). Both UNCLOS
(Art. 96(1)) and the 1992 Convention on Biological Diversity (CBD) call on parties to prevent or
control marine alien species (Art. 8(h)).
The movement of these organisms can displace local marine species (e.g., the zebra
mussel in the Great Lakes and the comb jellyfish in the Black Sea) or create a risk to human
health (e.g., introduction of cholera, red tide). The economic, human and eco-security impact of
29
the introduction of invasive marine species through ballast water has been identified as “… one of
the four greatest threats to the world’s oceans” (Global Ballast Water Management Program,
n.d.).
The IMO has responded to this issue through a series of resolutions and, more recently,
with the 2004 International Convention for the Control and Management of Ships’ Ballast Water
and Sediments (Ballast Water Convention). Although many coastal and port states have adopted
national laws or regulations to implement the resolutions and to protect their coastlines from this
threat, the Ballast Water Convention, which is primarily directed to flag states, is not yet in force.
To date, the Ballast Water Convention has been ratified by only eleven countries representing
3.46 per cent of the world tonnage (IMO, 2008b). At present, except for national legislation and
the binding preventative international obligations under UNCLOS and the CBD, the IMO
resolutions on ballast water management remain the (non-binding) applicable international
regulatory regime.
The Ballast Water Convention details technical standards and requirements for the
control and management of ships’ ballast water and sediments. The major goal of the Convention
is to shift ballast water management from exchange to treatment by 2016 for all ships. Ships are
to maintain on board a ballast water management plan (BWMP) specific to the requirements of
that ship depending upon the year of construction and to record ballast water operations in the
ships’ ballast water record book. Ballast water exchange (discharge port/coastal water and take
up new water) is to be conducted at least 200 nautical miles from the nearest land and in water
which is at least 200 metres in depth. In cases where the ship is unable to do this, the exchange
can be conducted in areas at least 50 nautical miles from the nearest land and where the depth of
the water is at least 200 metres. However, if the parameters of distance and depth cannot be met,
the port state can designate areas, in consultation with adjacent or other states, where a ship
could conduct the exchange. The Convention also establishes standards for ballast water
exchange methods and ballast water performance standards, i.e., concentration of viable
organisms in the ballast water discharged.
Since ballast water exchange can have serious repercussions for the safety of ships, the
Ballast Water Convention provides that a ship need not comply with these requirements if the
master reasonably decides that such exchange would threaten the safety or stability of the ship,
its crew, or its passengers either due to adverse weather, ship design or stress, equipment failure,
or any other extraordinary condition. Article 13 of the Convention provides that parties with a
common interest in protecting the environment, human health, property and resources in a given
geographical area, particularly those parties bordering enclosed and semi-enclosed seas, can
establish regional agreements consistent with the Convention.
Ballast water discharges could pose serious challenges to the ecologically fragile and
biodiversity rich Arctic marine environment. However, in Arctic waters it may in fact be the case
that species from southerly latitudes are unlikely to survive if discharged in northern waters. In
addition, the nature of voyages (cargo laden or in ballast) that would occur in Arctic waters is
uncertain.
Despite these unknowns, it should be noted that the IMO recently adopted (13 July 2007)
Guidelines for Ballast Water Exchange in the Antarctic Treaty Area (IMO MEPC 56, 2007b).
These Guidelines provide international guidance on the implementation of Article 13 of the
Ballast Water Convention on how ballast water is to be managed in regions of extreme cold with
fragile ecosystems. The Guidelines provide an interim measure for all ships entering the
Antarctic Treaty area before the Convention comes into force. Ships with ballast tanks entering
30
the Antarctic waters should prepare a ballast water management plan taking into account the
problems of ballast water exchange in cold environments and in Antarctic conditions. In
addition, the Guidelines recommend exchange well before entering the Antarctic area.
Importantly, the Guidelines address specific concerns for ships sailing in both Arctic and
Antarctic waters, proposing special measures with respect to sediment in ballast tanks (para. 9)
and the discharge of ballast water from Antarctic waters into Arctic and sub-Arctic waters
(para.7).
The mix of national and international waters in the Arctic poses special challenges in
managing ballast water and sediments. As noted recently, the Arctic may be an area with
significant wealth in marine genetic resources (DFAIT, 2007). Ballast water discharges by ships
in the Arctic pose not only complex environmental issues but, more importantly, raise serious
issues of safety (e.g., the waters in the ballast tanks may need constant heating as the waters
could turn into ice, jeopardizing the stability of the ship). Moreover, as weather conditions
constantly change, there could be very little predictability regarding decisions over ballasting and
de-ballasting.
The Ballast Water Convention does not take into consideration the harsh environmental
conditions of the Arctic that mandate special treatment and concern for safety. Among the Arctic
Council member states, Canada has a comprehensive set of regulations for ballast water
discharge (Canada, 2006). However, these are applicable only to areas that fall within its
jurisdiction. Even the Canadian regulations may prove inadequate to meet the challenges posed
by the Arctic, particularly in the context of safety. For instance, the contingency provisions under
the Regulations mandate that even in the event of a ship facing difficulties in complying with the
regulation or its BWMP, the ship is required to take direction from Transport Canada regarding
the discharge of ballast water. Questions may arise regarding the efficacy of this consultation,
particularly when a ship is caught up in rough weather and where split second decisions would
have to be made in the best interests of the ship and its crew. This position stands in sharp
contrast to the U.S. regulations wherein considerable discretion is provided to the master,
operator, or person-in-charge of a vessel in determining the safety exemption. Norway, a party to
the Ballast Water Convention, would also have responsibilities with respect to ships flying its
flag.
Particularly Sensitive Sea Areas
Since the early 1990s, several marine areas have received special protection from the
IMO because of their particular sensitivity to international shipping through designation as
particularly sensitive sea areas (PSSAs). A PSSA is a marine area “that needs special protection
through action by IMO because of its significance for recognized ecological, socio-economic, or
scientific attributes where such attributes may be vulnerable to damage by international shipping
activities” (IMO PSSA Guidelines, 2005). Special protection consists of appropriate protective
measures such as areas to be avoided, traffic re-routing and separation schemes, mandatory ship
reporting and prohibited discharges. It is possible for special area designation under MARPOL
73/78 to be one such measure. In exceptional situations, special mandatory measures may be
adopted under UNCLOS Article 211(6), although this has not yet occurred. These measures raise
the standard of protection for PSSAs and may be enforced by proponent coastal states once
designated. Using the authority provided by its own mandate, the IMO has developed Guidelines
31
for the Identification and Designation of Particularly Sensitive Sea Areas, most recently revised
in 2005.
An increase, perhaps even a marginal increase, in shipping in the Arctic, could result in a
significant threat to this particularly fragile environment. The PSSAs designated to date include
diverse sensitive environments such as the Great Barrier Reef and the Torres Strait, the SabanaCamaguey Archipelago in northern Cuba, Western European Waters and the Baltic Sea. Areas
eligible for such designation need to satisfy requirements grouped under (1) ecological, (2)
social, cultural and economic, and (3) scientific and educational criteria. Only one criterion
within any of these requirements need be satisfied. However, the threat from international
shipping must be demonstrated. The IMO designates a PSSA following a proposal by one or
more states and its consideration by MEPC and the Sub-Committee on the Safety of Navigation,
if a safety measure is proposed. Decisions are based on the proposed area’s environmental
conditions, demonstrated vulnerability to international shipping, and the availability of measures
within the IMO’s competence.
If the conditions and criteria set out above are satisfied in a given area of the Arctic, that
area may be eligible for PSSA designation. However, experience with the Western European and
Baltic PSSAs suggests that it would be important to secure consensus among Arctic states before
proceeding with a PSSA proposal. The Russian Federation opposed the Baltic PSSA and, as a
result, Russian waters have been excluded from that PSSA. Further, and as noted earlier in this
chapter, Article 234 of UNCLOS permits coastal states in ice-covered areas to adopt and enforce
non-discriminatory laws and regulations to combat vessel-source pollution in their EEZs, and
this is without the need to seek prior IMO approval. This provision may be read as
complementary to PSSA designation in that it provides enforcement authority. At the same time,
Article 234 powers may be exercised to achieve the same effect of a PSSA, without having one
designated.
Places of Refuge for Ships in Need of Assistance
As international shipping increases in the Arctic, it should be expected that there will be a
probable concomitant increase in the frequency of incidents involving ships in need of
assistance. This probable increase can be expected to occur even in the best of scenarios where
only modern Polar Class ships with highly competent crews navigate the harsh conditions of the
Arctic. Experience shows that stress of weather, equipment failure, human error or some other
unforeseen factor can adversely affect the performance and consequent safety of the best of
ships. Tradition and necessity have led to the observance by the international community of a
long-standing humanitarian custom to provide assistance to ships that request it. Injured or sick
crew may need to be airlifted or the ship itself may need temporary refuge before proceeding on
its maritime adventure. Where search and rescue is called for, the SAR Convention provides the
necessary legal framework. However, this custom has been subjected to international scrutiny in
relation to situations where provision of assistance to a ship, most especially when refuge in
sheltered coastal waters such as a port or a bay, is requested (Chircop & Linden, 2006, 1-31).
The casualties of the Erika and Prestige highlight the difficulty a national or port authority faces
when confronted by a ship requesting assistance when its condition poses major safety and
environmental threats to the coastal state.
32
In 2003, the IMO adopted Guidelines on Places of Refuge for Ships in Need of
Assistance to assist decision-making in these situations (IMO Refuge Guidelines, 2003).
Although not mandatory, the Guidelines provide a risk assessment framework for masters and
salvors on site with the ship, and coastal state authorities whose permission is requested for the
ship in need of assistance to enter a place of refuge in sheltered waters. In the European Union,
the European Commission has gone farther in developing a legal framework that not only
includes a duty to assist, but also a duty to designate places of refuge in member states (EC,
2002). Canada and the United States have had a longstanding practice of granting refuge on
humanitarian grounds and on a case-by-case basis. As will be seen below, Canada adopted a
National Places of Refuge Contingency Plan (PORCP), which establishes a national framework
and approach with associated regional measures (Transport Canada, 2007b). In the United States,
in 2007 the U.S. Coast Guard adopted a new internal policy for places of refuge (United States,
2007). An important condition is that the ship in need of assistance has a certificate of financial
responsibility under the U.S. Oil Pollution Act of 1990 or an acceptable letter of undertaking, but
that standard coverage under the CLC Convention would not be recognized. However, the
parties concerned would coordinate with the U.S. National Pollution Funds Centre and servicing
legal office to arrange for acceptable coverage to enable port entry.
In the Arctic marine environment, ships in need of a place of refuge encounter
considerable challenges. Elsewhere where places of refuge have been designated or offered to a
ship in distress, there is either help at hand (e.g., salvage) or a standby response capability in the
place of refuge or vicinity. Most of the sections of the actual and potential international
navigation routes in the Arctic are remote and over long distances, implying that salvage or any
coastal state assistance is likely not to be timely, if at all available. Also, with ice cover in
sheltered areas to be expected even in the summer navigation months, the identification of a
reasonably located safe place for a ship can be difficult. Consequently, there are likely to be
significant practical difficulties to be encountered in finding and supporting suitable places of
refuge for ships in the Arctic. Suitable locations for ships requiring shelter to make repairs in the
Canadian or Russian Arctic might be difficult to designate in advance due to the changes in ice
conditions depending on the season. Even with optimum conditions, a sudden wind change could
move ice into an otherwise sheltered location. However, a ship in need of assistance would
contact the coastal state’s marine administration through vessel traffic services and it would be
hoped that that state’s Maritime Assistance Service, as recommended by IMO, would designate a
location and provide assistance if requested (IMO MAS, 2004). To facilitate the provision of a
place of refuge by national authorities, the International Group of Protection & Indemnity (P & I)
Clubs informed the IMO of a new cover to be provided to ports for some of the risks they
undertake in providing refuge (IMO LEG, 2004).
Wreck Removal
The most recent international convention adopted by the IMO that has the potential to
contribute to the governance of shipping in the Arctic is the Nairobi International Convention on
the Removal of Wrecks, 2007 (Wreck Removal, 2007). Clearly, it is too soon for the convention
to be in force and at the time of writing none of the Arctic states are parties. The purpose of this
instrument is to provide state parties with the legal basis, beyond their territorial seas (and within
their territory or territorial seas at their option), to remove, or have removed, shipwrecks that
33
may have the potential to adversely affect human safety, goods and property at sea, and the
marine environment. Wrecks can pose significant danger to the safety of navigation, human lives
and the marine environment. Shipowners are made responsible for locating, marking and
removing ships; they are financially liable. Insurance is required and the possibility of direct
action against the insurer is also provided. Shipowners normally purchase cover for these risk
from the P & I Club (Gold, 2002).
The Role of Ports in International Maritime Law
Enforcement Through Port State Control
Most marine regions around the world are now covered by a global network of
memorandums of understanding (MOU) on port state control. At this time, the marine regions
covered by MOUs include: Paris MOU (Europe and North Atlantic), Tokyo MOU (Asia and the
Pacific), Viña del Mar MOU (Latin America), Cartagena MOU (Caribbean), Abuja MOU (West
and Central Africa), Black Sea MOU, Valletta MOU (Mediterranean), Goa MOU (Indian
Ocean), and Riyadh MOU (Arab States of the Gulf). Although the United States administers its
own port state control system, it has cooperating observer status with the Paris MOU. These
agreements among national maritime authorities provide a systemic approach to the inspection of
ships visiting their ports to ensure compliance with international standards established by
conventions listed in the individual MOU (Gold, 2006). The enforced conventions include
SOLAS, COLREGS, MARPOL 73/78, and STCW, among others. In the case of suspected
violations of COLREGS Rule 10 (traffic separation schemes) and MARPOL, an authority may
gather evidence at the request of another authority. The principal responsibility to implement and
enforce international shipping standards belongs to the flag state. However, each national
authority applies the instruments listed in the MOU that are in force and to which its state is a
party in relation to ships visiting its ports. Inspecting states ensure that ships of states that are not
parties to the instruments enforced under the MOU are not given any more favourable treatment
than the ships of states that are parties to such instruments. A port state control inspector can
require a ship to rectify a deficiency before departing the port and in the worst cases can detain
the inspected ship.
The Paris MOU is potentially relevant for ships navigating within the Arctic Circle (Paris
MOU, 1982). Members are the maritime authorities and coastal states of the North Atlantic basin
in North America and Europe. The maritime authorities of the Arctic Council states, including
Canada, but not the United States, are parties to the Paris MOU. The Tokyo MOU, which is the
only other arrangement involving states adjacent to the Arctic Circle, limits the area of
application to the Asia-Pacific region. The maritime authorities of Canada and Russian
Federation are parties, but the U.S. maritime authority is only an observer to the Tokyo MOU.
The Paris MOU refers to the ports of member authorities and does not appear to have any other
geographical restriction, including ports of member authorities located within the Arctic Circle.
At this time only Canada and the Russian Federation appear to have national safety and
environmental standards specifically designed for navigation in the Arctic, separately from
international standards adopted under the auspices of the IMO, including the Arctic Guidelines.
The Russian Federation employs a ship inspection system for the purpose of passage through the
Northern Sea Route. Canada requires that ships comply with the Arctic Waters Pollution
34
Prevention Act (AWPPA) (Canada, 1970) construction and other standards before they can
navigate in Arctic waters, and are inspected for this purpose.
A potential issue for Arctic Council states and the international maritime community
generally whose ships would be inspected with respect to their polarworthiness under SOLAS is
the potentially multiple standards that apply, i.e., the Arctic Guidelines (including the IACS
Unified Requirements), Canadian AWPPA standards and the Russian Federation standards, and
the instruments enforced under the Paris MOU on Port State Control. As international shipping
in the Arctic grows and new ports are developed within the Arctic Circle, it may be necessary for
the maritime authorities of Arctic states to consider whether they should coordinate port state
control enforcement efforts through a new dedicated MOU, or whether existing MOUs are
sufficient to enforce the higher regulatory standards applicable to the Arctic. Effective port state
control would need to enforce compulsory rules (Jensen, 2008).
Ports and Maritime Security
In 2002, about a year after the 9/11 terrorist attacks in the United States, the IMO
introduced the International Ship and Port Facilities Code (ISPS) as a mandatory instrument and
linked to the SOLAS Convention (IMO ISPS Code, 2002). The Code applies to all commercial
vessels over 500 gross tons engaged in international trade and, should a contracting party so
decides, also to ships not engaged on international voyages that serve ships arriving or departing
on an international voyage (IMO ISPS Code, 2002, Reg. 3.2). Mobile offshore drilling units are
also included. For the first time, an IMO instrument applies on land. The ISPS Code requires
ports and terminals, public and private, within or outside ports, to be secure. The Code decrees
levels of security for ships and ports. Ships may be required to provide notice and information
that may be requested by the maritime authorities of the host state (SOLAS, 1974, Chap. XI-2,
Reg. 9). Canada and the United States have advance notice of arrival requirements for ships that
depend on the duration of the voyage. For voyages longer than ninety-six hours, the notice must
be given ninety-six hours in advance (United States, 2002; Canada, 2004, s. 221).
Security plans for ships are prepared for approval by flag states, ship and company
security officers are appointed, as are security officers for ports, and port plans prepared and
approved. Certificates are issued to ships, companies and ports, and security plans are subject to
periodic audit. On 1 July 2004, the ISPS Code came into force and was quickly implemented
worldwide. This was followed by introduction of regulatory regimes, methods of identification
for seafarers and port workers, security audit processes, and intelligence gathering equipment
and procedures.
In the Arctic, a risk assessment should be conducted for ports as well as ship-loading
docks wherever located and at oil and gas transfer facilities, followed by adoption of security
plans, in order to comply with the ISPS Code. Ships engaged in cargo operations, support
services, or cruises in the Arctic will have to comply with the ISPS Code and cooperate with port
and terminal security. In areas under their jurisdiction, Arctic coastal states should have ship
control procedures in place, as well as intelligence gathering for the Arctic domain and a secure
system of assessing threats and sharing intelligence with law enforcement agencies.
35
PART III: INTERNATIONAL PRIVATE MARITIME LAW FRAMEWORK
Introduction
The shipping industry exists to transport people and to trade products for business and
profit. To be successful in the Arctic shipping business, shipowners must interact with a variety
of other commercial parties, whether the source of their earnings, such as cargo owners and
cruise passengers, or the suppliers of essential shipping services, like insurers and salvors. In
each case, shipowners engage with their customers or suppliers by private contracts. As private
arrangements, these contracts are regulated by private or civil law, typically of national origin.
Since ships move between different countries, their owners’ contracts can be subjected to a
variety of different national jurisdictions and laws. The resulting confusion has impelled the
international community to harmonize the relevant national laws in some areas by the conclusion
of international private law conventions that establish uniform contractual regimes. These are the
principal topics of explanation in this Part. The international public law of the sea, described in
Parts I and II, is not aimed at the regulation of the private commercial relationships being
discussed here. Even so, since it governs the conduct of ships and their owners, it must be taken
into account to the extent that it inevitably influences both the conclusion and performance of
maritime commerce. In addition, Part III includes discussion of the international conventions that
establish the means to acquire compensation and remedies for claimants that suffer loss or injury
as a result of the breach of the international public laws for the protection of the oceans from
ship-sourced pollution (Appendix D).
Carriage of Goods and Passengers by Sea
The movement of goods and passengers by sea is regulated by the terms of the carriage
contract with the carrier. Fundamentally, this is a voluntary arrangement which both sides have
freedom to negotiate and conclude. In principle, it is not regulated by international public law
because it is a private arrangement between the parties. Thus the international customs and
practices of the shipping, cruise and merchant communities are more likely to govern the Arctic
movement of goods and passengers than international maritime law.
Nonetheless, public law of the sea may influence the carriage contract in two ways. First,
the carrier must ensure that its ship meets all the public law standards for human safety and
environmental protection (e.g., SOLAS, MARPOL 73/78 and STCW). These standards are likely
to be written or read into carriage contracts, unless special terms about them are concluded.
Secondly, the carriage of passengers, the carriage of goods under bills of lading and the shipment
of dangerous goods have raised sufficient concern to attract public intervention through
international treaties containing minimum mandatory rules of carriage, which are incorporated in
the parties’ carriage contracts (Appendix D).
The essence of a contract of sea carriage is an agreement for safe transport and delivery
by ship in exchange for payment of freight, hire or passage. In addition to specifying the voyage,
the contract will allocate between the parties the risks and responsibilities of the transit. In
general, the kinds of risks are the same for all marine transport. The carrier must provide a
seaworthy ship for the voyage which must be prosecuted without deviation or delay and with due
36
care for the cargo or passengers. For example, the ship should be adequately crewed, equipped
and waterproof whether the voyage is through tropical or polar seas. However, the specific risks
are particular to each voyage and the carrier is obliged to prepare against reasonably foreseeable
risks. Thus for the carriage of a perishable cargo into the Arctic, a carrier must supply a ship that
is both seaworthy (i.e., watertight) and sufficiently heated.
A carriage contract is likely to contain a multitude of specific clauses designed to cover
all foreseeable contingencies of the particular voyage. Given the repetitious nature of many
international trade deliveries and cruise destinations, it is no surprise that international shipping
organizations and traders’ associations have developed standardized clauses for particular trades,
cargoes and routes and organized them into blank forms of contracts. In some areas, international
conventions also impose standard terms. There are three general international contractual
frameworks governing Arctic sea carriage relationships: 1) bulk goods in general cargo or tramp
ships, 2) packaged merchandise on northern supply and liner services, and 3) passengers on
cruise ships.
Bulk Goods in General Cargo or Tramp Ships
A key reason for marine transportation in Arctic waters is to remove extracted natural
resources. Typically, petroleum and minerals are moved in bulk in tankers and ore carriers that
tramp (sail) around the world from port to port. Natural gas is similarly transported but in
dedicated liquefied natural gas (LNG) carriers. The contracts of carriage of such trade are known
as charter parties, which are not governed directly by any international laws. Such international
“regulation” as exists consists of widely used and generally accepted standard terms of trade set
by industry bodies like BIMCO and INTERTANKO. Given the long experience of shipping to
ice-bound ports around the Arctic, these organizations have devised voluntary “ice clauses” for
inclusion in individual charter parties (e.g., BIMCO Ice Clauses). These clauses allow for the
contingency of changing ice conditions by giving the carrier liberty to deviate from the
contracted carriage to avoid, for instance, sending the ship to a destination that becomes
icebound or leaving it in a loading port as ice moves in.
More recently, member societies of IACS have introduced winterization guidelines for
navigation in cold climates, e.g., Det Norske Veritas (DNV) Guidelines (DNV, 2006) and
American Bureau of Shipping (ABS) Guidelines (ABS, 2006). These guidelines set out standards
of ship preparedness for Arctic shipping and thereby indirectly affect the standard of care for the
goods on board. For example, DNV Guidelines for winterization require cargo oil lines to be
located under deck and cargo valves to be protected from icing. When these guidelines are
regarded as best practice in the industry for shipowners, they set the expected minimum standard
of reasonable care for cargo.
Similarly, the IMO’s Arctic Guidelines and the Arctic Council’s Guidelines for Transfer
of Refined Oil and Oil Products in Arctic Waters (TROOP Guidelines) (Arctic Council, 2004)
may also affect the carriage of cargo. In addition, the public international maritime law that
mandates standards for ships may also indirectly influence the standard of care in a carriage
contract. Likewise, mandatory national legislation about Arctic shipping, which typically but not
exclusively falls upon the shipowner, may also affect a voluntarily concluded contract of carriage
such as a charter party. For example, under the Canadian AWPPA where weather, ice or sea
37
conditions require, a pollution prevention officer may order a ship away from a shipping safety
control zone, with consequent deviation and delay in delivery of its cargo as contracted.
Packaged Merchandise on Northern Supply and Liner Services
The re-supply of northern communities and work sites, everything from industrial tools
and machinery parts to food and personal items, are transported on shipping services along an
ordered route of delivery. As ice conditions diminish in the future, transportation of merchandise
between Europe and Asia along the Northern Sea Route by liner shipping services may be
expected. Such packaged, crated and containerized items are carried under contracts represented
by bills of lading and sea waybills. This kind of maritime trade is regulated internationally.
Several sets of competing international rules now exist, but their mode of operation and
regulatory function are the same. Subscribing countries must legislate the rules domestically so
that they are mandatorily incorporated into the carriage contracts. These rules set out the
minimum responsibilities of the carrier towards the cargo and its owner in return for a limited
maximum liability in the event of breach of the contract.
Established in 1924, the Hague Rules received wide application until modern shipping
and cargo handling methods rendered their allocation of risks and responsibilities between the
carrier and cargo owner somewhat dated. The Hague Rules were amended to some countries
satisfaction by the Visby and Special Drawing Right (SDR) Protocols in 1968 and 1979 (HagueVisby Rules, 1968/69), while other states chose to replace them with a new set named the
Hamburg Rules in 1978 (Hamburg Rules, 1978). In 1980 a further set, modelled on the Hamburg
Rules but designed for the burgeoning multimodal movement of goods that resulted from the
container revolution, was concluded by the Multimodal Convention (Multimodal Rules, 1980).
This growing confusion of international regulations has led the United Nation Commission on
International Trade Law (UNCITRAL) to prepare prospectively for possible conclusion in 2008
a wholly new uniform set of rules (UNCITRAL Draft Convention). The pattern of ratification of
the international carriage conventions by the Arctic states is set out in Appendix D. However,
ratification of an instrument per se is not determinative of the support or otherwise to a particular
instrument. For example, although not a party, Canada has implemented through the Marine
Liability Act the Athens Convention and the Hague-Visby Rules.
Each set of rules has to solve the same problem, namely balancing the risks of sea
transport and maritime trade in an internationally acceptable way. As with bulk cargo, the carrier
must provide a suitable ship in which to load, carry and care for the cargo to its destination. The
various sets of rules differ in the standards of conduct expected of the carrier, the scope of
application of the rules and the limits of liability for their breach. These are variations in details,
not principles. The Hague-Visby Rules, or some variant of them, are the most widely applied
international regulations at present. These rules apply in the Arctic just the same as in any other
ocean area. As with bulk cargo transport, practical standards appropriate for sailing in Arctic
waters (e.g., the IMO Arctic Guidelines, the DNV and ABS Guidelines, the Arctic Council’s
TROOP Guidelines and the Nunavut Conditions), concerning seaworthiness of the ship in ice
conditions and care of the cargo in cold climates, influence the operation of the rules.
In general, the Hague-Visby Rules require the carrier to load, handle, stow, carry, safekeep, care for and discharge the cargo (Art. II). The carrier must ensure that the ship is seaworthy
and cargoworthy and is properly equipped, supplied and crewed (Art. III(1)). It must also
38
complete the voyage without unreasonable deviation or delay (Art. IV(4)) and must protect the
cargo until discharge at its destination (Art. III(2)). There are provisions for exceptions for
intervening events and actions by persons beyond the carrier’s control, in addition to the notable
exclusion of liability for the negligence of the master and crew in the navigation of the ship (Art.
IV(2)). These rules are mandatory minimum terms of the carriage contract (Art. III(8)).
However, the carrier is free to agree to undertake greater responsibilities towards the cargo (Art.
V). In the event of breach of its duties, the carrier is liable for a specified compensation to the
cargo owner. No limitation of liability is applicable if the carrier has acted wilfully or recklessly
in disregard for the cargo (Art. IV(5)).
Beyond paying the agreed cost of transportation, the cargo owner’s chief duty is not to
ship dangerous goods without adequately forewarning the carrier of their hazardous nature.
Whether the cargo owner does so or not, the carrier is entitled to discharge or destroy a cargo
that poses a risk at any stage of the voyage and to hold the cargo owner liable for all damage
caused by it (Art. III(6)). What constitutes a dangerous cargo, and how such a cargo must be
treated, is determined in the first instance under the IMDG Code, but because new chemicals and
other hazardous products are continually being produced, these are constantly evolving. Further,
in instances of containerized cargo, the safety of the containers themselves is regulated by the
International Convention for Safe Containers (CSC, 1972).
Passengers on Cruise Ships
The growing interest in eco-tourism in the Arctic is rapidly increasing the number of
cruise ships making excursions in polar seas. The commercial carriage of passengers by sea,
whether on ferries or cruise ships, is internationally regulated by the Athens Convention Relating
to the Carriage of Passengers and their Luggage by Sea, 1974 and its protocols of 1976 and 1990
(not yet in force) (Athens, 1974/76/90). (A further protocol was concluded in 2002 but it is also
not yet into force: when it is, the consolidated treaty will be known as the Athens Convention,
2002). The safety of everyone on board, whether crew, cruise company employees or fare paying
passengers, is the responsibility of the carrier and is regulated by SOLAS. The Athens
Convention governs the terms of the passengers’ contract of carriage with the carrier, providing
minimum conditions subject to specified exceptions and limits of liability.
The Athens Convention states straightforwardly that the carrier is responsible for any
personal injury to passengers and loss or damage to their luggage that occurs as a result of the
fault or negligence of the carrier or its employees (Art. 3). If the injury or loss is incurred as a
result of shipwreck, collision, stranding, explosion, fire or defect in the ship (collectively called
“shipping incidents”), the carrier is presumed to be at fault unless it can affirmatively prove it
was not (Art. 3(2)). (Under the Athens Convention 2002, Art. 3, the carrier will be held strictly
liable for shipping incidents unless it proves they resulted from acts of war, hostilities, civil war,
insurrection, exceptional natural phenomena, or the wilful acts of third parties.) In other
circumstances, the injured passenger must prove the carrier or one of its employees was
negligent in a way that caused the claimed loss. Thus, for example, the failure of the master to
give passengers an appropriate warning before a potentially dangerous manoeuvre to avoid ice
would constitute negligence giving rise to a claim if passengers could demonstrate they were
injured as a consequence of the manoeuvre.
39
The Athens Convention does not, however, spell out the criteria of negligence.
Negligence acquires its meaning from accepted international shipping practices, particularly
amongst cruise ship operators, e.g., Association of Arctic Expedition Cruise Operators
Guidelines (AECO, 2007), and from SOLAS as well as other binding shipping safety rules such
as IMO’s Life Saving Appliances Code (IMO LSA, 2003). The IMO LSA sets out the minimum
kinds and operability of personal life saving equipment on board a passenger ship. However,
industry standards and international guidelines may not be sufficient as they may not be up to
date or adequately reflect special shipping situations. For example, the IMO LSA calls for
personal life saving appliances (e.g., lifeboats, liferafts, rescue boats and life jackets) to be
operational in temperatures ranging from +40o
C down to -15o
C, which is likely inadequate given
the low temperatures in the Arctic.
The Athens Convention also protects carriers by imposing controversial limits on the
compensation payable by them for breach of their duties. Under the Athens Convention 2002,
contracting states will be allowed to set their own higher or unlimited ceilings of compensation
(Art. 7). Injured claimants can exceed the prescribed limits only if they can prove the carrier’s
default was done wilfully or recklessly with the expectation that injury would probably result
(Athens, 1974/76/90, Art. 13). However, the compulsory insurance requirements and a direct
right of action against the liability insurers for injured claimants that will arise under the Athens
Convention 2002 should offer passengers greater assurance of actual receipt of compensation
(Art. 4bis).
Marine Insurance
There is no international convention on marine insurance. A business and private law
matter, marine insurance tends to be legislated at the national level (e.g., Canada and Russian
Federation) and, occasionally, at a sub-national level (e.g., United States). Insurance practices are
driven by insurance markets, the major providers being located in London, New York, Oslo and
Tokyo. Of particular significance for Arctic shipping is protection and indemnity insurance,
offered through P & I Clubs, with the major clubs being based in Japan, Norway, Sweden,
United Kingdom and United States, and represented by the International Group of P& I Clubs
(Table 6). Until recently, Russian Federation shipping in the Arctic tended to be insured under
state schemes (Schelkanov & Vasilyev, 2006; Smirnov & Stepanov, 2006). With the exception
of Russian Northern Sea Route experience, there is only limited knowledge and research on the
marine insurance aspects of Arctic shipping (Gold et al., 1996; Gold et al., 1997; Musin, 1998;
Ragner, 2000; Gold & Wright, 2006; Schelkanov & Vasilyev, 2006; Smirnov & Stepanov,
2006).
Marine insurance is an essential service to international shipping. It is generally conceded
that without marine insurance, international commercial navigation in the Arctic would not be
economically or environmentally viable (Gold & Wright, 2006). Marine insurance allows
shipowners and carriers generally to take on the risk of trading on Arctic routes and liabilities
imposed by statute, for example those arising from oil pollution damage. Shippers and
consignees would also want to protect their cargoes.
Throughout the long history of marine insurance, marine underwriters, although
conservative, have not been averse to risk exposure. What has enabled them to take on the risk
and charge an appropriate premium is the specialized knowledge they and the assureds possess to
40
enable them to assess the risk so as to be able to quantify it and consider the extent, conditions
and price of coverage.
Table 6. The International Group of Protection & Indemnity (P & I) Clubs
American Steamshipowners Mutual Protection and Indemnity Association, Inc.
Assuranceforeningen Gard (Gjensidig)
Assuranceforeningen Skuld (Gjensidig)
The Britannia Steam Ship Insurance Association Ltd
The Japan Shipowners’ Mutual Protection and Indemnity Association
The London Steam-Shipowners’ Mutual Insurance Association Ltd
The North of England Protecting and Indemnity Association Ltd
The Shipowners’ Mutual Protection and Indemnity Association (Luxembourg)
The Standard Steamshipowners’ Protection and Indemnity Association Ltd
The Standard Steamshipowners’ Protection and Indemnity Association (Bermuda) Ltd
The Standard Steamshipowners’ Protection and Indemnity Association (London) Ltd
The Steamship Mutual Underwriting Association Ltd
The Steamship Mutual Underwriting Association (Bermuda) Ltd
The Steamship Mutual Underwriting Association (Europe) Ltd
Sveriges Ångfartygs Assurance Förening (The Swedish Club)
The United Kingdom Mutual Steam Ship Assurance Association (Bermuda) Ltd
The West of England Shipowners Mutual Insurance Association (Luxembourg)
Today, although most of the risks associated with shipping are well known and
understood by insurers and assureds alike, the risks associated with polar navigation are still not
fully known or understood. Marine insurance tends to follow the commercial nature of the
venture rather then lead it. Underwriters often base their underwriting premiums on a historical
loss record. It is a competitive market. For the most part, and although significant knowledge has
been generated in relation to the Northern Sea Route, most of the Arctic is still perceived as an
unknown quantity or a marine frontier. As a result, the provision of insurance for Arctic shipping
tends to be on a case-by-case basis, expensive and also requiring self-insurance (Gold & Wright,
2006). Underwriters normally charge a surcharge in the range of 25 percent with respect to hull
and machinery and cargo insurance. However, at this time there do not appear to be discernible
insurance market patterns for Arctic shipping, partly because of the paucity or specialized nature
of activities to date (Gold & Wright, 2006). On the Northern Sea Route, it has been noted that
“marine underwriters are willing to assume the risks involved provided that sufficient support for
the vessels operating on this route is assured” (Gold & Wright, 2006).
Marine insurance claims concerning Arctic operations can be expected to encounter
certain difficulties. A loss in the remote Arctic can be a disincentive for the insurance industry
(NRC, 2007). It might be difficult, time consuming and costly for an assured to gather all the
material facts related to an incident in a remote area. It is possible for a vessel to be damaged and
not removed before ice closes in for the season. Whether the underwriters would consider such a
vessel a constructive total loss would depend on the particular facts of the case. If the vessel is
ice-strengthened and suffers no damage, it could be considered merely delayed and not covered
under the terms of the policy. Because the claims for a constructive loss are potentially greater in
41
the Arctic, the premium charged for such coverage reflects this higher risk. If the insurer chooses
not to accept the assured’s notice of abandonment, the shipowner, under statutorily derived
liability, could still be liable for wreck removal, which is normally covered by its P & I Club. In
the case of the sinking of Arctic Ublureak in 1983, the Canadian government required that the
vessel be removed the following summer. The cost of wreck removal was probably borne by the
P & I Club involved, not by the hull insurers, because the vessel was a constructive total loss and
the cost of removing the vessel exceeded its value when recovered. Thus P & I cover is likely to
play a critical role in Arctic shipping and is in fact a requirement for trading on the Northern Sea
Route (Schelkanov & Vasilyev, 2006). With respect to the latter, the requirement is for cover
that would provide compensation in the range of US$12 million to US$1.25 billion (Schelkanov
& Vasilyev, 2006).
Salvage
The opening of new trade routes in and through the Arctic will require the provision of
important services for safe international navigation in the region, such as timely meteorological
information, up to date charts, ice conditions advisories, navigation aids, port services, possibly
pilotage for some areas, towage and salvage. High standards for shipping will help prevent, but
not totally eliminate maritime incidents or even casualties, possibly due to human error or
equipment failing in the harsh conditions. A ship that experiences an incident, such as grounding,
fire, damage from a collision or even simply loss of engine power, may need external assistance
to stabilize its condition and be taken to a safe place.
Arctic shipping will need to have access to salvage just as shipping in any other marine
region. However, more than most other regions, the provision of salvage in Arctic waters will
encounter difficulties due to remoteness, harsh climatic conditions, darkness for half of the year,
relatively few ports that could provide even temporary repairs or a save haven, lack of
experience of salvors in ice-covered waters, the likely requirement for ice breaking and Polar
Class vessels, lack of dedicated salvage depots, and the particular fragility of the Arctic
environment. The recent M/S Explorer sinking off the Antarctic coast highlights the remoteness
and issues that would arise in an Arctic salvage operation. Perhaps to a significantly lesser extent
in the Northern Sea Route, there is little if any resident salvage capacity in the Arctic basin. The
ice-free ports of Murmansk and Nahodka appeared to be the best equipped for salvage
operations, airlift capacity and infrastructure (Semanov et al., 1997).
Against this backdrop the International Convention on Salvage, 1989 is an important
instrument and all Arctic Council member states are parties (see Appendix D). In general,
salvage is legislated and subject to industry standard form agreements. In common law
jurisdictions, such as most provinces and territories in Canada and states in the United States,
there is also common law salvage governed by principles and rules of equity administered by the
courts. Maritime law also recognizes life salvage, that is the saving of persons in distress at sea,
and this is governed by different principles from property salvage. This section focuses on
property salvage.
“Salvage” as a term of art refers to the actual service provided to a ship in need of
assistance, the body of law that exists to govern this maritime institution, and the reward due to
the salvors for their services. Essentially, the law of salvage provides to the salvor a reward for
successful salving of the vessel or cargo. The public law of salvage seeks to encourage this
42
essentially private aspect of commercial shipping. Private firms of professional salvors have
been created to respond to shipping casualties. Salvage is as much an art as a science, and
professional salvors build up their experience over a lifetime using the latest in computer
modelling of ship damage stability and their own intuition to complete successful salvage
operations. The goal of the law of salvage from a public perspective is to encourage investment
in equipment and for these firms to stay in business. Some states provide a state-operated salvage
response where it is thought that there is insufficient commercial capacity. The Russian
Federation has a fleet of polar vessels, including seventeen icebreakers, several of which are
nuclear-powered and provide salvage services (Brigham, 1988; Wikipedia, List of Icebreakers,
2008).
Traditionally salvage was only paid if there was success. Salvors took a risk and they
were paid handsomely if they were successful. The salvage award is a percentage of the value of
the salved property (ship and cargo), normally determined through an arbitration process and
frequently in London. Hence, the “no cure-no pay concept” that has existed for centuries.
However, perceptions and expectations have changed and salvage has become a complex
operation subject to environmental liabilities in modern national marine environmental
legislation. The 1989 Salvage Convention now recognizes that a salvor who has minimized or
prevented environmental damage is entitled to special compensation (Art. 14). Further, the P & I
insurance and salvage industries have developed additional standard clauses, such as the Special
Compensation P & I Club Clause (SCOPIC, including SCOPIC 2000), to enable the salvor to at
least recover their expenses (Gold et al., 2003, 614–617). The situation at this time is still not
sufficiently satisfactory to encourage the provision of salvage in conditions of great
environmental risk and the salvage industry has been lobbying for the introduction of a reward
specifically for the provision of environmental salvage, in addition to the reward for salving
maritime property. This would require an amendment to Article 14 on special compensation in
the Salvage Convention, or perhaps a new standard term for this purpose in the salvage contract
(Bishop, 2007). Salvage awards are normally paid by the shipowner’s hull and machinery
underwriters. Pollution salvage awards are paid for the P & I insurers. The P & I insurers are also
responsible for wreck removal if there is a government-ordered clean-up.
The parties to a salvage operation, i.e., salvors, shipowners and their insurers, can enter
into any contractual arrangement that they choose. The best known standard salvage agreement
is the “Lloyd’s Open Form of Salvage Agreement – No Cure-No Pay”, which provides a
comprehensive self-contained commercial document setting out the rights and obligations of the
parties to a salvage operation (LOF, 2000; Gold et al., 2003, 594–595). This form has been in
existence in successive iterations for a hundred years. If there is no contract, the parties will have
to commence action in the domestic courts to obtain a salvage award. Experience has shown that
this is an expensive and time consuming process, which tends not to encourage salvage activity.
As shipping in Arctic waters increases, there is likely to be a need for dedicated,
experienced and professional salvage personnel. There are few salvage companies with extensive
salvage experience in Arctic operations. The present international salvage and wreck regimes do
not contemplate Arctic operations. There has been very little contingency planning or exercises
of salvage operations in Arctic waters. Nor is there much equipment to draw upon as vessels of
opportunity. The lack of dedicated salvage equipment and repair facilities in the region will
likely require that the vessel be either towed out or repaired in situ and then made ready for a
voyage to a repair facility in more southern latitudes. Any salvage operation in the Arctic would
likely require an interaction between private salvors and government agencies that operate
43
governmental vessels such as icebreakers and re-supply ships. Special “liability salvage” will
probably need to be negotiated between shipowners, salvors and underwriters. If equipment has
to be brought in to a salvage scene, this will require heavy lift aircraft and there may not be
airfields in close proximity to the salvage incident. With so little shipping relative to other
trading routes, it seems unlikely that private interests will stockpile equipment and do work in
the Arctic without some special relationship with the coastal state.
Liability and Compensation for Ship-source Pollution Damage
Compensation for pollution damage caused by ship-source pollution is governed by an
international regime elaborated under the auspices of the IMO (Appendix D). If a pollution
incident occurs involving an oil tanker, compensation is available to governments or other
authorities that have incurred costs for clean-up operations or preventive measures and to private
bodies or individuals who have suffered damage as a result of the pollution. Separate
conventions deal with compensation for such damages caused by hazardous and noxious
substances from ships and bunker oil spills from non-tankers. Under the conventions, in general,
the shipowner is liable for the loss or damage up to a certain amount. This liability will be
covered in part by insurance (Gold, 2006; Tan, 2006). Separate compensation funds provide
additional compensation when the victims do not obtain full compensation from the shipowner
or his/her insurer. These compensation funds, established under the auspices of the conventions,
are managed by intergovernmental organizations established by the state parties.
Oil Spills from Tankers
The international regime governing compensation for damage caused by oil pollution
from oil tankers is based the 1992 Civil Liability Convention (1992 CLC) and the 1992 Fund
Convention. Additionally, the 2003 Supplementary Fund Protocol (Supplementary Fund) came
into force in 2005 (IOPCF, 2006; SOPF, 2007). These conventions apply to pollution damage in
the territory or territorial sea or EEZ, or equivalent area, of a state party regardless of the
polluting ship’s flag state or its owner’s state. However, the conventions only apply to spills of
persistent cargo and fuel (bunker) oil from sea-going tankers, not to spills of bunker oil from
ships other than tankers.
The main types of “pollution damage” covered are: (1) property damage; (2) the costs of
clean-up and preventative measures at sea or on shore; (3) compensation payable for loss of
earnings suffered by the owners of property contaminated by oil as a result of a spill
(consequential loss); (4) compensation payable for loss of earnings caused by oil pollution
suffered by persons whose property has not been polluted (pure economic loss); and (5)
compensation payable for the costs of reasonable reinstatement measures aimed at accelerating
natural recovery of environmental damage.
The 1992 CLC applies the principle of “strict liability” for damage from pollution to the
registered shipowner; proof of negligence is not required. Claims under the Convention are
prohibited against the servants or agents of the owner, the charterer (including a bareboat
charterer), manager or operator of the ship, and others. The Convention requires compulsory
liability insurance for tankers carrying more than 2,000 tonnes of persistent oil in bulk or cargo.
44
Uniquely, claims for pollution damage for which the tanker owner would be liable under the
Convention may be brought directly against the insurer.
Table 7. Liability limits
Convention Maximum amount payable Ship size
1992 CLC 89.77 million SDR (US$ 148 million),
shipowner and insurer
140,000 units gross
tonnage or more
1992 Fund 203 million SDR (US$ 334 million),
includes the sum actually paid by the
shipowners and their insurers under the
1992 CLC
Irrespective of size
Supplementary Fund
Protocol
750 million SDR (US$ 1.2 billion),
including the amounts payable under the
1992 CLC and the 1992 Fund Convention
Irrespective of size
HNS Convention 100 million SDR (US$ 165 million)
shipowner and insurer
HNS Fund provides up to 250 million
SDR (US$ 411 million), includes amount
paid by shipowners and their insurers
100,000 units of
gross tonnage or
more
Irrespective of size
Bunkers Convention Insurance or other financial security to
cover liability for pollution damage
compulsory for the registered owner of a
ship
1,000 units gross
tonnage or more
1996 LLMC Protocol
(can apply
in claims under
Bunkers Convention)
1 million SDR (US$ 1.6million)
Additional amounts for larger ships:
400 SDR (US$ 658)
300 SDR (US$ 494)
200 SDR (US$ 329)
Not exceeding 2,000
gross tons
For each ton from:
2,001 to 30,000
30,001 to 70,000
In excess of 70,000
OPA ‘90 US$1 billion insurance cover for pollution
Note: IMF value calculated as at March 28, 2008 (SDR 1 = US$ 1.64599).
45
Tanker owners will normally be entitled to limit their liability to an amount based on the
gross tonnage of the tanker involved in the incident (Table 7). Additional compensation may be
available under the 1992 Fund Convention when the compensation available from the tanker
owners and their insurers is insufficient to meet all valid claims (Table 7). The 1992 Fund will
not pay compensation if the damage occurred in a state which was not a party to the 1992 Fund
Convention. The “optional” Supplementary Fund provides for additional compensation. If the
total amount of valid claims exceeds the total amount of compensation available under the
conventions, the compensation paid to each claimant will be reduced proportionately.
The 1992 Fund is financed by contributions levied on any “person” who has received in
one calendar year more than 150,000 tonnes of crude oil and heavy fuel oil (contributing oil) in a
state party to the 1992 Fund Convention after sea transport, collected retrospectively. There is no
regular levy or fixed premium to establish a standing fund.
In the Arctic context, it may be unclear if the conventions apply to floating storage units
(FSUs), floating production, storage and offloading units (FPSOs), and permanently and semipermanently anchored ships engaged in ship-to-ship (STS) oil transfer operations. The 1992
Fund’s governing bodies’ policy statements emphasize that the decision on the application of the
1992 conventions to a specific incident would be taken in the light of the particular
circumstances of that case (IOPCF, 2000: 34–36; IOPCF, 2006: 29–30; Canada, 2001a, Part 6,
5.49). In this respect the conventions’ current definition of “ship” is problematic. For the
purposes of the 1992 CLC and Fund Conventions, “‘Ship’ means any sea-going vessel and
seaborne craft of any type whatsoever constructed or adapted for the carriage of oil in bulk as
cargo, provided that a ship capable of carrying oil and other cargoes shall be regarded as a ship
only when it is actually carrying oil in bulk as cargo and during any voyage following such
carriage unless it is proved that it has no residues of such carriage of oil in bulk aboard.” Thus
ultimately, in accordance with the conventions, the question as to whether a particular vessel is
covered may come down to a judgement of a court in a state party (Fund Convention, 1992, Art.
7).
Hazardous and Noxious Substances Spills from Ships
The International Convention on Liability and Compensation for Damage in Connection
with the Carriage of Hazardous and Noxious Substances by Sea, 1996 (HNS Convention) is not
yet in force. Among Arctic states, only the Russian Federation is a party at this time. The HNS
Convention is modelled on the international compensation regime for oil pollution from tankers.
Hazardous and noxious substances includes bulk solids, liquids including oils, liquid gases such
as liquefied natural gases (LNG) and liquefied petroleum gases (LPG), and packaged substances.
Bulk solids such as coal and iron ore are excluded. The HNS Convention covers loss or damage
caused by non-persistent oil, as well as non-pollution damage from persistent oil. Pollution
damage caused by persistent oil spills from tankers is excluded since such damage is already
covered by the international regime for oil tankers. Likewise, the convention excludes loss or
damage caused by radioactive materials.
The HNS Convention covers the following “damage”: (a) loss of life or personal injury
on board or outside the ship; (b) loss of, or damage to, property outside the ship; (c) loss or
damage caused by contamination of the environment (compensation for environmental damage
is limited to costs of reasonable measures of reinstatement actually undertaken); and (d) the costs
46
of preventive measures taken by any person after an incident has occurred to prevent or mitigate
damage. The Convention shall apply exclusively to all or some damages depending on where
they occur geographically. In a state party’s territory or territorial sea any damage caused during
carriage of HNS by any seagoing ship is covered; in its EEZ or equivalent area, damage by
contamination of its environment is covered. The Convention also covers any damage (excluding
damage by contamination of the environment) caused outside the territory, including the
territorial sea, by HNS carried by seagoing ships registered in a state party. The Convention
applies to preventative measures wherever taken.
The HNS Convention establishes a two-tier compensation regime. The first tier is
provided by individual shipowners and their insurers, and the second tier by the International
Hazardous and Noxious Substances Fund (HNS Fund). This Fund is financed by contributions
from individual receivers of HNS after sea transport in state parties to the Convention.
The shipowner is strictly liable for damage caused by HNS carried on board a ship.
However, shipowners can limit their liability based on the tonnage of their ships (Table 7). The
Convention provides for compulsory insurance and direct action against insurers. The HNS Fund
will provide additional compensation to a maximum amount, including the amount paid by
shipowner and their insurers. A Protocol to the HNS Convention is currently being developed
that would allow a greater number of states to ratify the Convention and facilitate its entry into
force.
Bunker Oil Spills from Non-tankers
The International Convention on Civil Liability for Bunker Oil Pollution Damage
(Bunkers Convention, 2001) will enter into force on 21 November 2008. At the time of writing,
only Norway among Arctic states is a party. However, many more states representing
approximately 25 per cent of the global tonnage are parties. The international compensation
regime for tankers does not include spills of oil carried as fuel in bunkers of ships other than oil
tankers. The Bunkers Convention covers some of that omission. It applies to pollution damage
caused by contamination resulting from the escape or discharge of bunker oil from a ship. For
the purposes of the Convention, a “ship” is broadly defined as including “any seagoing vessel
and seaborne craft, of any type whatsoever”. As expected, the Bunkers Convention does not
apply to pollution damage defined by the 1992 CLC respecting tankers.
Under Article 1(3) of the Bunkers Convention, the “shipowner” (defined broadly to
embrace “the owner, including the registered owner, bareboat charterer, manager and operator of
the ship”) will be liable to pay compensation for “pollution damage” caused in the territory,
territorial sea and EEZ of a state party. (“Pollution damage” is defined the same as in the 1992
CLC.) The Convention applies the principle of strict liability, and claims for compensation for
pollution damage may also be brought directly against an insurer.
The obligation to obtain insurance rests solely upon the registered owner of a ship.
Insurance, or other financial security to cover the liability for pollution damage, is compulsory
for the registered owner of a ship having a gross tonnage greater than 1,000 registered in a state
party. Nevertheless, a state party may declare that this requirement does not apply to ships
operating exclusively within its territory or territorial sea. The Bunkers Convention preserves the
right of the shipowner and insurer to limit liability under any applicable national or international
regime, such as the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC
47
1976), as amended (Appendix D). In states where LLMC 1976 applies, shipowners and others
may have no general right of limitation of liability for bunker pollution claims which do not
involve physical damage to property or result in infringement of rights (e.g., economic loss
arising from disruption to a business caused by an oil spill).
Unlike the 1992 CLC for oil tankers, the Bunkers Convention does not provide for a
separate free standing limitation fund provided by shipowners to be exclusively available to
satisfy bunker pollution damage claims. Thus bunker pollution damage claimants will have to
prove their claims against any available limitation fund alongside other “property” claims arising
out of the same incident. Further, there is no additional compensation internationally (like that
available for tanker spills under the 1992 Fund Convention) when compensation under the
Bunkers Convention is inadequate. The Bunkers Convention is accompanied by a Resolution
(Annex 1) which urges all states to ratify or accede to the 1996 Protocol to the LLMC 1976 thus
increasing the fund available for bunker pollution claims. Funds available for all claims
(including those for bunker pollution damage) are greater under the 1996 LLMC Protocol than
under LLMC 1976.
The United States Experience
Prior to the Exxon Valdez incident in March 1989, there was movement within the United
States toward ratification of the two 1984 protocols that amended the international 1969 CLC
and 1971 Fund Conventions. The Oil Pollution Act of 1990 (OPA ’90) signed into U.S. law on
18 August 1990, rejected the international tanker liability and compensation regime (United
States, 1990). OPA ’90 instituted new rules to promote oil tanker safety and focuses on five
areas: (1) prevention, e.g., crew competence, double hulls, etc.; (2) preparedness, e.g.,
contingency plans, ship response plans and exercises, qualified individuals and oil spill response
organizations; (3) response, primary responsibility is vested in the U.S. Coast Guard (USCG); (4)
liability that serves as a real deterrent and compensation; and (5) research and development into
response and prevention techniques and hardware.
OPA ’90 applies to both tank and non-tank ships and to any person owning, operating or
chartering a ship. Under the Act, there may be more than one responsible party in a single
incident. The shipowner is strictly liable for costs and damages resulting from oil spills, which
will be covered by mandatory insurance (Table 7). Failing response by the shipowner to an
incident, the US$1 billion Oil Spill Liability Trust Fund (OSLTF) provides federal resources for
a rapid and effective response with recourse against the shipowner to recover any expenditure.
OPA ’90 is enforced by the USCG using both inducements and sanctions to engender
compliance. Inducements include waiver of penalties and a reduction in regulatory burdens for
responsible shipowners. Sanctions include administrative, civil, and criminal penalties to deter
negligence or intentional misconduct. These sanctions, coupled with an effective enforcement
programme, have a significant deterrent effect on potential polluters. In the event of an oil spill
in U.S. waters, shipowners will be held strictly liable for costs and damages, with the possibility
of unlimited liability in the most serious cases.
Structurally, the U.S. and international regimes are similar, yet they are far apart with
respect to such key issues as to when shipowners may lose their right to limit liability, and the
scope and extent of compensable damages (particularly natural resource damages). (Also
noteworthy, unlike OPA’90, is the international regime’s lack of a separate limitation fund, as
48
well as no supplementary compensation, for bunker pollution damage claims involving non-tank
ships, given the risk of very significant bunker oil spills from non-tankers in light of industry
trends.)
Both the 1992 CLC and OPA ’90 limit the liability for shipowners. However, it is much
easier to break these limits in OPA ‘90. Also, in the United States, it would be a rare incident
where responsible parties are deemed to have a complete defence. Under OPA ’90, the polluter
pays for damages it causes. Under the 1992 CLC test (which differs from the 1969 CLC test) it is
practically impossible for shipowners to be deprived of their right to limit liability. The
international regime provides more protection than deterrence. In the United States, in addition
to OPA ’90, coastal states may adopt more stringent oil spill liability laws, including cargo
owner liability, in state territorial waters.
OPA ’90 provides for payment of natural resource damage claims from the OSLTF. The
technically justified reasonable cost for reinstatement/restoration measures for which
compensation is available under the international regime, might equate to primary restoration
under the U.S. Natural Resource Damage Assessment (NRDA) regulations (United States,
1996). However, the U.S. regulations also include the diminution in values of those natural
resources pending restoration plus the reasonable cost of assessing those damages. The
international conventions do not provide for these latter sorts of compensation provided by the
U.S. NRDA regulations.
Regional Developments: The European Union and the Antarctic
In the aftermath of the Erika incident (France, December 1999), the European
Commission (EC) proposed new measures, including penal sanctions as a deterrent (not related
to compensation), directed against any person who has caused a pollution incident through gross
negligence. The EC viewed the international regime as providing for inadequate compensation
for environmental damages. The Erika 1 and Erika 2 packages of 2000 proposed amendments to
the international regime to restrict the right of shipowners to limit their financial liability if
accidents are due to their actual fault, as well as proposals to remove the de facto immunity of
other key players (such as the charterer, operator, or manager of the ship) from compensation
claims (EC, 2000a & b). The packages also proposed establishing a European COPE Fund
should the then proposed international Supplementary Fund prove inadequate.
In January 2002, the EC issued a proposal for a directive on environmental liability to
cover damage to biodiversity, soil pollution and damage to waters covered by the Water
Framework Directive. It is noteworthy that the proposed damage assessment rules are similar to
the U.S. NRDA regulations for estimating damages for injuries to natural resources.
The Prestige incident (Spain, November 2002) appeared to confirm that the measures
proposed in the Erika 1 and 2 packages were well founded. In November 2005, the EC proposed
a third package of legislative measures (Maritime Safety Package 3, or Erika 3), including a
proposal for a directive on the civil liability and financial securities of shipowners (EC, 2005).
The EC’s particular concern is to remove the ceiling on civil liability set in the 1992 CLC. By
proposing improvements to the international regime for civil liability and compensation of
pollution, the EC seeks to ensure that maritime operators transport oil on board tankers of the
highest standard. The proposed directive would incorporate the 1996 LLMC Protocol into EU
(European Union) law. It would be compulsory for all shipowners to cover their civil liability for
49
an amount no less than double the limitation amounts set out in LLMC 1996. Further, the EC
seeks a mandate for negotiating within the IMO a revision of the LLMC 1996 for the purpose of
reviewing the test for shipowners losing the right to limit liability. However, the EU Council of
Ministers recently rejected the EC’s proposed directive on civil liability for shipowners (Stares,
2008). Whether this is a fatal setback for this EC proposal, or not, remains to be seen. Certainly,
another serious marine oil pollution incident would add fuel to this policy debate within the EU
governing bodies.
Positive developments since 1999, including those within the international liability and
compensation regime, have undoubtedly assisted some EU member states in their opposition to
the proposed EC directive. As noted above in this chapter, an optional third tier of compensation
from a new international Supplementary Fund is now available to 1992 Fund Convention state
parties that want it. As well, in February 2006, the International Group of P & I Clubs had
presented to the 1992 Fund a revised Small Tanker Oil Pollution Indemnification Agreement
(STOPIA 2006) and a new Tanker Oil Pollution Indemnification Agreement (TOPIA 2006).
Under STOPIA 2006, the limitation amount applicable to small tankers would, on a voluntary
basis, be increased to 20 million SDR for tankers of 29,548 gross tonnage or less for pollution
damage in all 1992 Fund Party states. TOPIA 2006 would result in the shipowner indemnifying,
on a voluntary basis, the Supplementary Fund for 50 percent of the compensation amounts paid
by it. These agreements, while not contracts, are unilateral offers by shipowners which confer on
the respective Fund the right of enforcement. Thus the 1992 Fund Assembly decided at its
October 2005 session not to re-open the 1992 CLC and the 1992 Fund Convention to adjust the
shipowner’s limit of liability. Alternatively, at their February/March 2006 sessions, the
Assemblies of the 1992 Fund and the Supplementary Fund, in effect accepted the International
Group’s proposals for a STOPIA 2006 and TOPIA 2006.
The action taken within the EU bodies has galvanized the IMO to improve the regulation
of ship safety and the international liability and compensation regimes. Supporters of the IMO
hope that changes in the international regimes will preclude all, or most of what otherwise might
prove to be, in effect, a ‘EurOPA’ that would threaten the continued viability of the international
regimes.
Efforts have also been undertaken to establish a liability regime in the Antarctic. In June
2005, a new annex was adopted under the Protocol on Environmental Protection to the Antarctic
Treaty. Annex VI to the Protocol, Liability Arising from Environmental Emergencies (Liability
Annex), is subject to ratification and is not in force. The Liability Annex takes a unique approach
to liability: If an operator fails to take prompt and effective response action, the operator will be
liable to pay the costs of the response action, if any, taken by parties to the Annex or those
authorized by the Parties (Bloom, 2006). The Liability Annex specifically includes tourist,
scientific research and governmental ships within its scope.
PART IV: SELECTED NATIONAL LEGAL FRAMEWORKS
While shipping standards as discussed above are largely adopted at an international level
and with global application, both Canada and Russia have chosen to impose, founded upon
Article 234 of UNCLOS, special shipping requirements for Arctic waters. The following
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overviews summarize some of the main legislative and regulatory measures developed by these
two countries.
CANADA
Since the first recorded attempt to discover the Northwest Passage by John Cabot in
1497, explorers have sought to find a commercially viable passage through Canada’s northern
waters. The belief that a route lay to the far north persisted for several centuries, however it was
not until 1906 that Roald Amundsen completed the first transit of the Northwest Passage.
Currently, there are few complete transits of the Northwest Passage annually, although numerous
vessels ply Canadian Arctic waters during the summer months. Spanning the entire North
American continent from the Pacific to the Atlantic Ocean, there are several different routes
through the Canadian Arctic archipelago, including the McClure Strait, Dease Strait and the
Prince of Wales Strait, but not all of them are suitable for modern commercial ships (Figure 4).
Figure 4. Routes through the Canadian Arctic archipelago
Source: Map created by the Dalhousie University GIS Centre, 23 May 2008.
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The national maritime administration of Canada is Transport Canada, and its principal
responsibilities are performed through Marine Safety, a line organization of the department.
Transport Canada’s marine responsibilities include regulatory development and administration,
navigational and marine safety, pollution prevention, security, and port state control. Transport
Canada collaborates with several other departments and agencies. The Canadian Coast Guard, a
special operating agency currently reporting to the Department of Fisheries and Oceans, deals
with operational service matters. These operational services include ice breaking, boating safety,
search and rescue, aids to navigation, environmental protection and response, and marine
communications and traffic services. The Central and Arctic Region headquarters is located in
Winnipeg, Manitoba. Environment Canada’s responsibilities in the Arctic include provision of
ice and meteorological services and protected areas such as wildlife areas and bird sanctuaries.
The Parks Canada Agency is responsible for the implementation of policies and programs that
relate to Canada’s national parks, national marine conservation areas, and other national historic
sites and heritage areas.
There are many Canadian laws that affect shipping in the Canadian Arctic. For example,
from a protected area perspective there are at least four federal statutes applicable which could
affect Arctic shipping: the Oceans Act (marine protected areas) (Canada, 1996), the Canada
Wildlife Act (marine wildlife areas) (Canada, 1985b), the Canada National Marine Conservation
Areas Act (marine conservation areas) (Canada, 2002), the Migratory Birds Convention Act,
1994 (migratory bird sanctuaries) (Canada, 1994a). The Department of Fisheries and Oceans,
together with other federal departments, has produced the Federal Marine Protected Areas
Strategy to promote a coordinated approach (Ottawa, 2005). However, the main parameters of
shipping controls in the Arctic may be captured under five main themes (Appendix B). The
Arctic Waters Pollution Prevention Act (AWPPA) (Canada, 1970) and Regulations (Canada,
1978b) stand as the primary shipping control vehicles. The Canada Shipping Act, 2001 and
Regulations serve a “secondary role.” Marine security requirements and developments are a third
tier of governance. Liability and compensation for ship-source oil pollution represents a fourth
aspect of governance. A fifth category of shipping control involves non-legally binding
documents, such as guidelines and manuals.
Current Legal Regime
Arctic Waters Pollution Prevention Act (AWPPA) and Regulations
Following a trial run of the Northwest Passage by the SS Manhattan in 1969, Canada
responded to the threat of future foreign oil tanker transits in vulnerable Arctic waters by passing
the AWPPA in 1970, which is still in force today. The Act established a 100-nautical mile
pollution prevention zone in Arctic waters and prohibited all deposits of waste by any person or
ship except as provided in regulations (s. 9). The Act authorized the Governor in Council
(federal cabinet) to sub-divide Arctic waters into shipping safety control zones (s. 11) and to pass
regulations for the control of shipping within the zones including construction, equipment and
crewing standards (s. 12). Pollution prevention officers were given broad powers to board and
inspect any ship within a shipping safety control zone and to direct ships to remain outside a
zone or to anchor in a place selected by the officer in case of safety concerns (s. 14(4)).
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Consistent with this legislation, Canada’s declaration accompanying the instrument of accession
to MARPOL 73/78 stated:
(a) The Government of Canada considers that it has the right in accordance with
international law to adopt and enforce special non-discrimination laws and regulations for
the prevention, reduction and control of marine pollution from vessels in ice-covered
waters where particularly severe climatic conditions and the presence of ice covering
such waters for most of the year create obstructions or exceptional hazards to navigation,
and pollution of the marine environment could cause major harm to or irreversible
disturbance of the ecological balance.
(b) Consequently, Canada considers that its accession to the Protocol of 1978, as
amended, relating to the International Convention for the Prevention of Pollution from
Ships, 1973 (MARPOL 73/78) is without prejudice to such Canadian laws and
regulations as are now or may in the future be established in respect of arctic waters
within or adjacent to Canada (IMO, 2005, 96).
Although the United States and several European states issued communications to the IMO
concerning Canada’s declaration, none of those communications objected to it (IMO, 2005, 96).
Subsequently, a Shipping Safety Control Zones Order (Canada, 1978c) divided Canada’s
Arctic waters into 16 shipping safety control zones, and ASPPR (Canada, 1978a) have set out a
complex array of shipping control measures. All ships are allowed to deposit sewage generated
aboard (s. 28) and ships are largely prohibited from discharging oil or oily mixtures with narrow
exceptions such as for the purpose of saving the loss of a ship and engine exhaust (s. 29). The
owner or the master of a ship proposing to navigate within any zone may apply for an Arctic
Pollution Prevention Certificate from a Canadian marine inspector or from a surveyor of a
classification society outside of Canada, to indicate that the ship complies with the regulations
when in Canadian waters (s. 13). Ships over 100 gross tonnage and carrying oil in excess of 435
m3
are not allowed to navigate in any zone unless they meet special construction standards set
out in schedules to the Regulations (ss. 3(1) and 6(1)).
No tanker is allowed to navigate in any zone without the services of a qualified ice
navigator (s. 26(1)). The Regulations define qualified as having “served on a ship in the capacity
of master or person in charge of the deck watch for a total period of at least 50 days, of which 30
days must have been served in Arctic waters while the ship was in the conditions that required
the ship to be assisted by an ice-breaker or to make manoeuvres to avoid concentrations of ice
…” (s. 26(7)(b)).
The regulations have also established a zone/date system for ships carrying more oil than
453 m3
(s. 6). Earliest and latest entry dates for each of the 16 shipping safety control zones are
set corresponding to the ice capability of 14 categories of ships. For example, the most powerful
Arctic Class 10 vessel could operate year round in all the zones while the least ice-capable, Type
E ship (open water), would be excluded from entering the first six zones at any time of the year
as those zones have the most severe ice conditions (DFO/CCG, 1999).
The categories include nine Arctic class ships (10, 8, 7, 6, 4, 3, 2, 1A and 1) with
classifications based on the thickness in feet of ice that the vessel would have the power and
strength to break, and five ships types (A, B, C, D and E). The types are based on the FinnishSwedish (Baltic) rules where Type A ships can operate in thick first-year ice and Type E ships
53
are considered open water vessels with no ice strengthening (Transport Canada, 1998a). To
complicate matters, in 1995 Transport Canada issued the Equivalent Standards for the
Construction of Arctic Class Ships which set construction standards for four classes of new ships
with each of the four classes being the equivalent to an Arctic Class set out in the Regulations
(Transport Canada, 1995). The categories (and Arctic Class equivalent) are as follows: CAC 1
(Arctic Class 10); CAC2 (Arctic Class 8); CAC3 (Arctic Class 6); and CAC4 (Arctic Class 3).
To provide more flexibility for ship entries in light of variable ice conditions year to year,
Canada introduced the Arctic Ice Regime Shipping System (AIRSS) in 1996 (Transport Canada
1998a; Transport Canada 1998b). The System, having a legal foundation under section 6(3) of
the ASPPR, allows ships to navigate outside the present zone/date system when ice conditions
are suitable (DFO/CCG, 1999). The System uses a mathematical formula, considering
concentrations of ice and ice types, to determine whether a ship can enter the ice regime in a
particular zone. A ship choosing to follow the system based on actual ice conditions would be
required to have a qualified ice navigator on board.
Canada, through the National Research Council of Canada, has conducted a
reexamination of the zone/date intersection of the regulations in light of climate change in a
recent study (Timco & Kubat, 2007). The data on which the zones are based is now 40 years old
and these have become dated. This report builds on earlier work the Canadian Hydraulics Centre
(CHC) undertook on the ice regime system. The purpose of the report and research was to
initiate a dialogue among the stakeholders to build a better Arctic shipping regime and that
dialogue is ongoing.
Five other sets of regulations round out the control of shipping pursuant to the AWPPA.
The Arctic Waters Pollution Prevention Regulations provide limited exceptions where wastes
may be deposited into Arctic waters, for example when domestic waste deposit is permitted
under territorial authorization or industrial waste is authorized under federal oil and gas
legislation (Canada, 1978b, ss. 5 and 6). Charts and Nautical Publications Regulations, 1995
require the master and owner of every ship of 100 tons or more to have on board the most recent
editions of navigational charts, documents and publications (Canada, 1995, s. 4). Steering
Appliances and Equipment Regulations try to ensure steering gear units are tested before
departures of ships (Canada, 1983, s. 12) and require tankers and chemical or gas carriers to take
special precautions including an alarm system for failure of any steering power unit and the
capability of moving from automated steering to a manual method (s. 5). Navigation Safety
Regulations set out various equipment requirements for ships navigating in shipping safety
control zones including gyro-compasses (Canada, 2005, s. 66), radar (s. 67), echo-sounders (s.
68) and search lights (s. 76). Ship Station (Radio) Regulations, 1999 require, among other things,
that a non-Canadian ship navigating in a shipping safety control zone be equipped with a ship
station and radio equipment in accord with the Regulations (Canada, 1999).
While UNCLOS, through Article 234, supports special coastal state powers over shipping
in Arctic ice-covered waters out to 200 nautical miles, Canada has yet to extend its special Arctic
legislation to cover waters beyond the 100-nautical mile pollution prevention zone.
Canada Shipping Act, 2001 and Regulations
The Canada Shipping Act, 2001, while largely aimed at general control and registration
of Canadian ships, is especially relevant to pollution control in the Arctic (Canada, 2001b). Part
54
9 of the Act allows regulations to be issued regarding pollution discharges and the management
of ballast water for all vessels including foreign ships in Canadian waters (internal and territorial)
and in the EEZ.
Ballast Water Control and Management Regulations, issued in 2006, are made explicitly
applicable to shipping safety control zones in the Arctic as well as to waters of the EEZ (Canada,
2006, s. 1). The Regulations require ships to carry on board and to implement a ballast water
management plan (s. 11) and set ballast water exchange requirements for ships involved in
transoceanic (s. 6) and non-transoceanic navigation (s. 7). For a ship engaged in transoceanic
navigation (navigating more than 200 nautical miles from shore where the water depth is at least
2,000 metres), the ship is generally prohibited from discharging ballast water taken on board a
ship outside waters under Canadian jurisdiction unless the ship conducts the exchange before
entering Canadian waters in an area situated at least 200 nautical miles from shore where the
water depth is at least 2,000 metres. Where a ship cannot comply with the open ocean discharge
requirement due to safety or stability concerns, the Regulations provide for special discharge
zones in Canadian waters, two of which are in the North. A ship voyaging to a port, offshore
terminal or anchorage area in Hudson Bay is allowed to discharge ballast in an area in Hudson
Strait east of 70o
west longitude where the water depth is at least 300 metres. A ship voyaging to
a port, offshore terminal or anchorage area in the High Arctic is allowed to discharge ballast
water in an area in Lancaster Sound east of 80o
west longitude where the water depth is at least
300 metres. For ships involved in non-transoceanic navigation (not navigating more than 200
nautical miles from shore where the water depth is at least 2,000 metres), their ballast water
exchange is required to occur before entering Canadian waters in an area at least 50 nautical
miles from shore where the water depth is at least 500 metres. The same two northern special
discharge areas may be used by a ship involved in non-transoceanic navigation in case of
stability or safety justifications.
Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals,
issued in 2007, set discharge standards, based upon MARPOL, for oil and oily mixtures, noxious
liquid substances, sewage, garbage and air emissions (Canada, 2007). For example, the
Regulations authorize the discharge of oily bilge water if the undiluted oil content is no more
than 15 ppm (s. 42(1)) and allow the discharge of an oily mixture from oil tanker cargo spaces
with various MARPOL limitations, including that the discharge occur more than 50 nautical
miles from land and the instantaneous rate of discharge of the oil in the effluent does not exceed
30 litres per nautical mile (s. 42(2)). However, the Regulations provide that the discharge
standards for oil and oily mixtures, noxious liquid substances, sewage and garbage do not apply
within Arctic shipping safety control zones. The regulatory standards are still applicable,
however, to Arctic waters beyond the 100-nautical mile pollution prevention zone out to 200
nautical miles from the coastline. Consistent with the AFS Convention, the same Regulations
address the use of organotin compounds and prescribe control measures for ships in waters under
Canadian jurisdiction and for Canadian ships generally.
Although the Canada Shipping Act, 2001 authorizes regulations to be passed establishing
vessel traffic services (VTS) zones in an Arctic shipping safety control zone (s. 136) whereby
vessel reporting and clearance would be mandatory, mandatory VTS zones have only been
established for areas on the east and west coasts of Canada. Only a voluntary, non-regulatory
VTS zone referred to as NORDREG, has been developed for Arctic Canada. Under NORDREG,
ships of 300 tons or more are encouraged to follow various reporting procedures including the
pre-entry provision of information about ice class, amount of oil on board (fuel and cargo) if
55
such amount exceeds 453 m3
, date of the Arctic Pollution Prevention Certificate if carried and
the name of the classification society. An exit report is also urged (CCG, 2007).
While the Canada Shipping Act, 2001 generally requires ships to enter into an
arrangement with certified “Response Organizations” (ROs) who are to provide oil spill response
services (s. 167), the Canadian Coast Guard (CCG) has only certified a network of four privatesector owned ROs to provide emergency response services for up to 10,000 tonne spills in waters
south of 60o
north latitude. Although no certified RO has been established for waters north of 60o
latitude, the shipowner remains responsible as first responder. However, in terms of preparedness
to combat oil pollution, the Canadian Coast Guard retains a primary response capacity in Arctic
waters (SOPF, 2007, 46). During the shipping season, CCG icebreakers carry a limited inventory
of first response spill equipment, and it is estimated that there is enough equipment within the
region to respond to a 1,000 tonne oil spill (SOPF, 2007).
The Canada Shipping Act, 2001 also establishes a framework for search and rescue
operations in Canadian offshore waters. The Minister of Fisheries and Oceans is authorized to
designate rescue coordinators and rescue coordinators are given broad powers to direct any
vessel to take part in searches or to otherwise render assistance where a vessel or an aircraft is in
distress or missing (s. 130).
At present, Canada’s SAR capability in the eastern Arctic during the shipping season is
coordinated by the Marine Rescue Coordination Centre (MRCC) in Halifax. For marine SAR,
Canadian Coast Guard vessels operating in the Arctic would be tasked and military fixed wing
aircraft may be deployed from Greenwood, Nova Scotia. Other aircraft at Iqaluit, Nunavut, and
operated by Civil Aviation Search and Rescue (CASAR), in addition to helicopters from CCG
ships, may participate in a SAR operation in the Arctic. To cover the central Arctic, military
aircraft from Trenton, Ontario, may be deployed on a SAR mission and to cover the western
Arctic, the RCC in Victoria, British Columbia, would coordinate operations.
The Canada Shipping Act, 2001 has a specific provision for the reporting of dangerous
ice conditions. Section 112 of the Act requires the master of a Canadian vessel, which encounters
dangerous ice or subfreezing air temperatures associated with gale force winds and causing
severe ice accretion on the superstructure of the vessel, to give notice of the danger to all vessels
in the vicinity and to authorities onshore. The Canadian Ice Service, run by the federal
Department of the Environment, provides an information service on sea ice and iceberg
conditions and movements in the Canadian Arctic (Canada/CIS, n.d.). The same department also
runs the Weatheroffice, which provides meteorological information on the Arctic (Canada/WO,
n.d.). These information services provide important timely and accurate information to assist
navigation in Canadian Arctic waters.
While the Canada Shipping Act, 2001 allows regulations to be passed controlling or
prohibiting navigation in order to protect the environment in a shipping safety control zone in the
Arctic (s. 136), Canada has not adopted any mandatory routing requirements in the Arctic for
commercial ships to date. Currently, ships can receive electronically ice maps and other
information to assist them to select routes through the Canadian archipelago, depending on ice
conditions. Ships have to have the freedom to seek out leads in ice cover and in heavy ice may
require icebreaker assistance. Collision avoidance has not been an issue to date, as few ships
operate in the Arctic and they communicate with each other as they work through ice. In the
future, if traffic increases in an extended shipping season with more open water conditions,
routing might be considered an option and one which could be exercised through the VTS.
56
Marine Security
With respect to marine security, there are no specific requirements applicable in the
Arctic. All ships must comply with the ISPS Code, which Canada has adopted into its domestic
law through the Marine Transportation Security Act (Canada, 1994b) and the regulations made
pursuant to it. The Marine Transportation Security Regulations (Canada, 2004) require all ships
to meet a variety of reporting requirements and to develop shipboard security plans. As noted
earlier, there is a compulsory 96 hour reporting requirement before entering Canadian waters.
These requirements are not unique to the Canadian Arctic, but do apply. The security
requirements are administered by Transport Canada Marine Security Branch, which is a separate
directorate from Transport Canada Marine Safety. However, they have a close functional
working relationship. If there is a security threat the Minister of Transport may direct the vessel
to a specific place. In the Arctic, this could be problematic because of remoteness of the region
and limited number of ports accessible to commercial ships.
The Canadian government has made various commitments to enhance Canada’s security
and enforcement capability in the Arctic. Recent commitments include building new Arctic
patrol ships, expanding aerial surveillance in the North, establishing a Canadian Forces Arctic
Training Centre in Resolute Bay, Nunavut, and establishing a docking and refueling facility in
Nanisivik, Nunavut, to serve as a staging area for naval vessels in the High Arctic and for use by
CCG vessels as well (Prime Minister of Canada, 2007a & b). There is also made a budget
commitment of CDN$720 million for construction of a new Polar Class icebreaker (Prime
Minister of Canada, 2008).
Liability and Compensation for Ship-source Oil Pollution
Canada’s introduction of the AWPPA showed the world how strong its environmental
concern could be, and the need for fundamental changes to traditional law in order to effectively
deal with environmental problems. Currently in Canada, two acts govern civil liability and
compensation for ship-source oil pollution in the Arctic: the Marine Liability Act (Canada,
2001a) and the AWPPA.
1. The Marine Liability Act
Statutory civil liability and compensation for ship-source pollution is provided for in Part
6 of the Marine Liability Act (MLA). The geographical application of Part 6 includes the
territory of Canada, Canadian waters and the EEZ of Canada. While Canada is currently a state
party to the 1992 CLC and the 1992 Fund Convention, it is the MLA that gives these
international conventions, with important modifications, the force of law in Canada respecting
the liability and compensation for spills from seagoing oil tankers (Convention ships).
Canadian domestic law on liability and compensation for ship-source oil spills goes
further than these conventions. Even before the 1969 CLC and 1971 Fund Convention came into
force internationally Canada had enacted domestic oil spill legislation under Part XX of the old
Canada Shipping Act (Canada, 1985a). Part XX was one of the first national comprehensive
regimes for oil spill response, liability and compensation in the western world. The principal
elements of Part XX were:
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• Establishing the strict liability of shipowners for the costs and damages for a
discharge of oil.
• Allowing shipowners, in certain circumstances, to limit their liability.
• Creating a new national fund, the Maritime Pollution Claims Fund (MPCF), to be
available for claims in excess of the shipowner’s limit of liability.
• Giving the Minister of Transport the power to move or dispose of any ship and cargo
discharging or likely to discharge oil.
This national regime existed in Canada between 1971 and 1989. During this period, Canada was
not party to the international 1969 CLC and 1971 Fund Convention. In 1989 (following the
Exxon Valdez incident), Canada decided to increase its coverage for spills from seagoing oil
tankers by accepting the international regime, while modifying and continuing its domestic
regime. The Ship-source Oil Pollution Fund (SOPF) came into force on 24 April 1989, by
amendments to the CSA and succeeded the MPCF. Canada joined the 1992 CLC and 1992 Fund
Convention in 1999 through amendments to the CSA.
Part 6 the MLA, which came into force on 8 August 2001, applies, with some
modifications, the 1992 CLC and the 1992 Fund Convention as part of Canadian law, and
continues Canada’s particular domestic regime that was previously found in the old CSA. Part 6
provides for the statutory liability of owners for oil spills from both Convention and other than
Convention ships. Under Part 6 “ship” includes ships of all classes, and “owner,” other than in
relation to a Convention ship, is broadly defined and is not limited to “registered owner” as in the
Conventions. “Oil” is defined to include petroleum fuel oil, sludge, oil refuse and oil mixed with
water. Thus, for example, the Canadian regime covers bunker oil spills from ships of all classes.
Subsection 51(1) of the MLA provides that the claims for which owners may be liable for a spill
from their ships include oil pollution damage (including impairment to the environment), and
cost and expenses of clean-up, preventive measures and monitoring, to the extent that both the
measures taken and the costs and expenses are reasonable, and for any loss or damage caused by
those measures. The owner of the ship is strictly liable under the Act. This statutory liability does
not depend on proof of fault or negligence. Nevertheless, certain statutory defences are made
available to the shipowner in subsection 51(3).
Under the MLA there are limitation periods for commencing proceedings to recover
compensation. The Act provides for definite time limits ranging from two to six years from
specified events depending on the circumstances: (1) action against a shipowner – subsection
51(6); (2) claim against the SOPF – subsection 85(1); and (3) claim for loss of income –
subsection 88.
The MLA provides that Convention ships (carrying more than 2,000 metric tons of
persistent oil) must have a certificate of insurance or other security for oil pollution liability as
required by the 1992 CLC.
The MLA stipulates in section 62 that in incidents involving Convention ships a claimant
may also commence an action directly against the owner’s insurer in respect of a matter referred
to in subsection 51(1). Section 62 also provides that, in that event, the insurer is entitled to
establish the defences affecting the owner’s liability set out in subsection 51(3) and, in addition,
may establish as a defence that the occurrence resulted from the wilful misconduct of the owner.
However, under the MLA there is no right of direct action against the insurer of a ship other than
a Convention ship.
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Under the MLA, owners of Convention ships and ships other than Conventions may limit
their liability based on tonnage as determined by Part 6 and Part 3 of the Act respectively, using
SDRs issued by the International Monetary Fund (IMF) in the calculation of same.
Uniquely, the MLA provides for a national fund in Canada, the SOPF. (The balance in the
SOPF, a special account held by the Government of Canada, as at March 31, 2007, stood at some
CDN$364 million.) Unlike the situation in other state parties to the 1992 Fund Convention
(where individual corporations, etc., who have received in one calendar year more than 150,000
tonnes of persistent oil, must pay contributions directly to the International Fund), all Canadian
contributions are paid out of the SOPF.
The liability of the SOPF for compensation claims is stipulated in section 84 of the Act.
As a fund of last resort, the SOPF is liable for the matters referred to in subsection 51(1) of the
MLA above, if:
• reasonable steps to recover from the shipowner and the International Fund have been
unsuccessful;
• the owner and the international fund are not liable by reason of certain statutory
defences;
• the claim exceeds the owner’s limit of liability and, in the case of a Convention ship,
to the extent the excess is not recoverable from the international fund;
• the owners are financially incapable of meeting their legal obligations under
subsection 51(1), to the extent the obligation is not recoverable from the international
fund;
• the cause of the oil pollution damage is unknown and the Administrator of the SOPF
has been unable to establish that the occurrence that gave rise to the damage was not
caused by a ship (a so-called mystery spill); or
• the Administrator is a party to a settlement in proceedings commenced by a claimant
against shipowners or their insurers (the Administrator is, by the Act, made a party to
all such proceedings).
The SOPF can also be a fund of first resort for claimants, including the Crown. Under
section 85 of the Act any person (other than a response organization) may file a claim directly
with the Administrator without going first to shipowners or their insurers. The Administrator
must investigate and assess the claim. To the extent a claim is paid, the Administrator is then
subrogated to the claimant’s rights and is required to take reasonable measures to recover the
amount of compensation paid from the shipowners, or their insurers, the International Fund, or
any other person. Consequently, the Administrator is empowered by Part 6 to commence an
action in rem against the ship or the proceeds of its sale to obtain security for the claim. The
Administrator is entitled to obtain security either prior to or after receiving a claim. This power
has been very useful in claims involving ships other than Convention ships where, pending the
coming into force of the Bunkers Convention, there is still no right of direct action against a
shipowner’s insurer.
Finally, under section 88 of the Act, the SOPF may also be liable to a widely defined class
of persons in the Canadian fishing industry for claims for loss of income resulting from an oil
spill from a ship and not recoverable otherwise under Part 6. Consequential economic loss would
be recoverable otherwise under Part 6. This particular statutory provision (section 88) would
appear to provide sensible relief where persons of this class have suffered pure economic loss
59
that is otherwise not recoverable as ‘oil pollution damage’ under Part 6, given the existing nonstatutory law of damages in Canada. This should not be an issue where a Convention ship is
involved because, as noted elsewhere in this chapter, the 1992 international regime has adopted a
policy of accepting in principle claims for pure economic loss.
2. Arctic Waters Pollution Prevention Act
The Canadian liability and compensation regimes for Arctic waters is further complicated
since the AWPPA and the Arctic Waters Pollution Prevention Regulations (AWPPR) (Canada,
1978b) made pursuant to the Act, also include civil liability provisions for ship-source pollution.
Under the AWPPA, statutory civil liability for deposit of “waste” in Arctic waters applies to both
the owner of a ship and owner of its cargo. The AWPPA provides that liability is for cost and
expenses incurred by the Crown to repair or remedy any condition, and reduce or mitigate
damage, etc., resulting from such deposit, and all actual loss or damage incurred by other
persons. Under the AWPPA these other persons are given priority ahead of the Crown in the
recovery of claims. Under the AWPPA the joint and several liability of the shipowner and cargo
owner is “absolute.” This statutory liability does not depend on proof of fault or negligence. In
particular, there are no statutory defences available to the owners of ship and cargo under the
AWPPA. The limitation periods for commencing proceedings to recover compensation for costs
and expenses and actual loss or damage under the AWPPA are two years from the time the
deposit of waste occurred or first occurred or “could reasonably be expected to have become
known to those affected thereby”.
The AWPPA stipulates that a shipowner has to provide evidence of financial
responsibility (where the quantity of waste to be carried exceeds 2000 tons) in a form that allows
direct recovery action against his/her insurer. In this respect the AWPPR acknowledges that the
insurer can be exonerated from liability in certain circumstances and if the insurance contract so
provides. Both shipowner and cargo owner may limit the maximum amount of their joint and
several liability as provided in the AWPPA and AWPPR, where maximum liability is calculated
on the vessel’s tonnage and using gold francs.
With both the AWPPA and MLA providing that the Marine Liability Act should prevail in
case of any inconsistency between the Acts, some uncertainty surrounds where those
inconsistencies exist. The most obvious inconsistencies include absolute (AWPPA) vs. strict
liability (MLA) for shipowners, differing limitation of liability provisions, and variations in time
limitations for commencing legal proceedings. In light of those inconsistencies, it seems likely
that most marine compensation claims will be pursued under the MLA. The AWPPA remains a
possible “fallback”, especially for claims involving cargo owners and non-oil pollution damages
from ships. However, at this time the AWPPA only applies to shipping pollution incidents within
Canada’s 100-nautical mile Arctic pollution prevention zone.
Other Codes and Guidelines for Arctic Shipping
The Guidelines for the Operation of Tankers and Barges in Canadian Arctic Waters
(Transport Canada, 1997a) provide for an additional level of environmental protection against oil
spills from all tank vessels. The guidelines apply to all tank vessels exceeding 150 gross
registered tons operating in shipping safety control zone waters, as well as Hudson, Ungava and
60
James Bays. In addition to specific constructions standards for tankers and barges, the Guidelines
include provisions for an onboard ice navigator, crew training, oil clean-up equipment and
emergency response plans.
The Arctic Waters Oil Transfer Guidelines (Transport Canada, 1997b) set out the
operational standards for all oil transfers exceeding 500 m3
in Arctic waters (north of 60o
latitude), whether between two ships or a ship and shore terminal/storage depot. The aim of the
guidelines is to prevent cargo/fuel oil spillage and the resulting environmental damage. The
guidelines call for advance notice and qualified supervision of such transfers, and completion
and reporting of transfer checklists.
The Guidelines for Operation of Passenger Vessels in Canadian Arctic Waters (Transport
Canada, 2005) provide Arctic cruise ship operators with information on all the relevant Canadian
and territorial government agencies to contact for advice and approvals in planning cruises in
Canadian Arctic waters. Cruise ships entering Canadian Arctic waters must comply with all
relevant marine safety, security, pollution prevention and customs regulations. Cruise ships must
fall within the legal entry limit set in the ASPPR for the various shipping safety control zones for
their proposed itinerary. The guidelines encourage tour operators to conserve the Arctic
environment and suggest that operators and tourists should consult the World Wildlife Fund for
Nature International (WWF) codes of conduct for operators and tourists respectively (WWF
Arctic Program, http://www.panda.org/arctic).
In Canada, the National Place of Refuge Contingency Plan (PORCP) (Transport Canada,
2007b) implements the IMO Refuge Guidelines. PORCP replaces the previous ad hoc response
process involving the Regional Environmental Emergencies Team (REET), port authorities and
the provinces. PORCP applies to all situations where a ship is in need of assistance and requests
a place of refuge in Canadian waters, including internal waters, the territorial sea and the EEZ,
and is to be applied within the framework of existing local, national and international law.
PORCP provides a decision-making risk assessment tool for Transport Canada’s Marine Safety
Regional Directors. Although regional procedures and arrangements for the Canadian Arctic
have not yet been implemented, PORCP expressly includes ice issues as criteria for selecting
suitable places of refuge along with other conditions. PORCP specifically notes the need for
close collaboration with Denmark and the United States in dealing with incidents in boundary
waters or where the outcome could have an impact on the Greenland or the United States
(Canada/Denmark, 1983; Canada/United States, 2003). Each Transport Canada marine safety
zone is to put in place a risk assessment team to respond to such requests.
Moreover, the Canada Marine Act grants port authorities significant traffic control
powers they could utilize when a port entry is requested. Ships may be requested information
before they are given clearance to enter a port (Canada, 1998, s. 56(2)). The port authority may
empower its officials to provide traffic clearances; direct the master, pilot or any person in
charge of the ship to provide information on this ship; and direct a ship to leave a dock, berth or
other port facility, or to leave or refrain from entering any area, to proceed to or remain at a
specified location (s. 58). These powers may be exercised, among other, where there is actual or
threat of pollution or hazard to life or property, an obstruction to navigation, or congestion to
navigation which poses an unacceptable risk to shipping, navigation, the public or the
environment (s. 58(2)).
Ice Navigation in Canadian Waters contains operational guidelines and also serves as a
reference and introductory training manual for ships operating in Canadian waters in which ice
may be encountered (DFO/CCG, 1999). Every ship of 100 gross tonnage or over, navigating in
61
Canadian waters in which ice may be encountered, is required to carry and make proper
navigational use of this document.
The Marine Environmental Handbook – Arctic, Northwest Passage gives detailed
information concerning Arctic marine environmental issues and concerns specifically in the
Northwest Passage and serves as a reference manual, particularly for cruise ships (DFO, 1999).
The Handbook includes various suggested navigational practices such as staying at least ten
miles away from shore on the north and south coasts of Lancaster Sound in order to avoid the fall
migration routes for marine mammals.
RUSSIAN FEDERATION
Ever since the existence of a northeastern passage was proven in 1648 and the mapping
of the northern coastline completed following the expeditions of Vitus Bering (1725–1728) and
the Great Northern Expedition (1732–1743) (Granberg et al., 2006a, 10; Koroleva et al., 1995, 4
& 61), Arctic marine shipping above the Eurasian continent has been developed subsequently by
Imperial Russia, the Soviet Union and, at present, the Russian Federation. A first initiative to
open up the Russian Arctic to foreign navigation was made by the then Soviet Minister of
Merchant Marine, Bekayev, on 28 March 1967 during the height of the Cold War (Armstrong,
1970, 183). The fact that the so-called sector decree (Russian Federation, 1926), stating that all
lands and islands already discovered or still to be discovered in the Soviet sector as belonging to
the USSR, was initially interpreted by the Soviet Union as including ice blocks and surrounding
seas (Korovin, 1926, 46), underlies the importance of this 1967 initiative. This first offer to open
up the Northern Sea Route, however, was never taken up by foreign shipowners. It appears to
have been tacitly withdrawn in the wake of the Suez Canal crisis, apparently to avoid offending
Russia’s Arab allies by appearing to provide an alternative route to the Suez Canal (Armstrong,
1972, 119).
Two decades later, in October 1987, Gorbachev renewed the offer: “Depending on the
evolution of the normalization of international relations, we could open the Northern Sea Route
for foreign shipping subject to the use of our icebreaker pilotage” (Gorbachev, 1987, 3). It took
another two years for the first foreign currency to be generated by the Northern Sea Route
(Ovchinnikov, 1989, 1). Even then, however, no foreign ship was involved. Instead, the Soviet
ship Tiksi was chartered for hard currency by the foreign owners of the goods to be transported
from Hamburg to Osaka using the Northern Sea Route during the summer of 1989 (Franckx,
1991, 38). It was not until the politically tumultuous summer of 1991 that a foreign ship, the
French Astrolabe, made a through passage (Franckx, 1992, 140–144). Earlier that same year, an
article in Pravda, entitled “Flags in Hot Ice: For the First Time the Northern Sea Route Opened
for Foreign Shipping,” confirmed the adoption of Regulations for Navigation on the Seaways of
the Northern Sea Route (Russian Federation, 1990) to become operational on 1 June 1991
(Chertkov, 1991, 6). The Astrolabe, receiving its official authorization on 1 July 1991, must
therefore have been one of the first ships to have made use of these 1990 Regulations. It took a
long time to publish these regulations, even though they had been approved by the USSR
Minister of Merchant Marine on 14 September 1990 on instruction of a Decree of the Council of
Ministers of 1 June 1990 (Franckx, 1992, 137).
62
Current Legal Regime
The current legal regime of Arctic marine shipping in the Northern Sea Route is still
based on these same 1990 Regulations (Kolodkin et al., 2007, 264–266; Egorov et al., 2006,
493). According to the Head of the Administration on the Northern Sea Route, three other texts
adopted in 1996 regulate the present-day legal regime of this sea route, namely the 1996 Guide
to Navigation (Russian Federation, 1996a), the 1996 Regulations Concerning Icebreaking and
Pilot Guidance (Russian Federation, 1996b), and the 1996 Requirements Relating to the Design,
Equipment, and Supply of Ships (Russian Federation, 1996c) (Gorshkovky, 2003, 67–68 & 71).
This basic legal framework applicable to foreign shipping in the Northern Sea Route, has
apparently not changed much up till present (Appendix B). Indeed, the Russian Ministry of
Transport still makes many of these documents available through their official webpages
() in exactly the same version as they were adopted more than ten years ago.
Besides this basic framework a number of other related enactments exist, which will not be
covered here (for a listing see for instance Granberg et al., 2006a, 24–25).
1990 Regulations

The 1990 Regulations (Russian Federation, 1990) define the Northern Sea Route as
follows:
[T]he essential national transportational line of the USSR that is situated within its
inland seas, territorial sea (territorial waters), or exclusive economic zone adjacent
to the USSR Northern Coast and includes seaways suitable for leading ships in
ice, the extreme points of which are limited in the west by the Western entrances to
the Novaya Zemlya Straits and the meridian running north through Mys Zhelaniya,
and in the east (in the Bering Strait) by the parallel 66° N and the meridian
168°58’37” W (Art. 1 (2)). [emphasis added]
This definition raises the difficult question of whether or not the Northern Sea Route, and by
implication the application of these regulations, is limited to the 200 nautical mile EEZ limit, or
extends beyond that limit into the high seas as well. Given the legislative antecedents, as well as
their interpretation in the Soviet doctrine, it was believed that the latter option was the more
probable one (Franckx, 1993, 189–190). This is confirmed by later Russian writings (Lukashuk,
2005, Chapter VI, para. 10).
The unitary character of this transport route is not undermined by the presence of ships in
these parts of the high seas as it is impossible to traverse the route in either direction without
navigation through waters falling under Russian sovereignty (Kolodkin et al., 2007, 264). This
definition also clarifies the distinction between the Northern Sea Route and other concepts such
as north-eastern passage or northeast passage, since the Northern Sea Route is said to form a
basic part of those other, much broader concepts (Granberg et al., 2006a, 9). Or stated
negatively, if ships want to sail between ports of Europe, Asia and America by only making use
of the north-eastern passage or northeast passage, they have to remain outside so-called Russian
waters and the Northern Sea Route (Koroleva et al., 1995, 49 & 99). However, the northern
boundary of the route remains undefined and includes high latitude routes, even those crossing
63
the North Pole (Koroleva et al., 49 & 99, as well as maps on 50 & 100). The incorporation of
Article 234 of UNCLOS into Soviet legislation led to similar uncertainties as to its exact scope
of application (Franckx, 1993, 178–179 and 188–189). The new Russian legislation on the EEZ,
the 1998 (December) Federal Act (Russian Federation, 1998a, Art. 32), states that the limits of
such areas will be published in Notices to Mariners. It seems therefore safe to conclude that the
door is still left open for the possible application of these 1990 Regulations beyond the 200-mile
zone. Also the western lateral boundary of the Northern Sea Route has become unclear after
some recent high level statements (Franckx, 2008). The question here is whether the field of
application of the legal regime of the Northern Sea Route also includes the south-eastern, icecovered part of the Barents Sea (Gorshkovsky, 2003, 67; Granberg et al., 2006a, 10), or not.
Further Russian federal acts also include definitions of the Northern Sea Route. The 1998
(July) Federal Act includes a special article on the Northern Sea Route in a chapter on the legal
regime of sea ports, internal waters and the territorial sea (Russian Federation, 1998b). Article 14
reads:
Navigation on the seaways of the Northern Sea Route, the historical national
unified transport line of communication of the Russian Federation in the Arctic,
including the Vil’kitskii, Shokal’skii, Dmitrii Laptev and Sannikov Straits, shall be
carried out in accordance with this Federal Act, other federal laws and the
international treaties to which the Russian Federation is a party and the
Regulations for Navigation of the Seaways of the Northern Sea Route approved by
the Government of the Russian Federation and published in Notices to Mariners.
The 1998 (December) Federal Act adopted only a few months later does not have a similar
provision even though by far the longest part of the Northern Sea Route runs through the Russian
EEZ (Figure 5).
Essentially, the basic aim of these 1990 Regulations is to allow navigation on a
non-discriminatory basis for ships of all states, while giving careful consideration to
environmental concerns (Arts. 2 and 1(4)). The 1990 Regulations provide the framework within
which these operations have to take place. Requests are to be addressed to the Administration of
the Northern Sea Route (Art. 3). The ship and the master of the ship will have to meet special
requirements; if the latter does not have the required experience, a state pilot will be assigned
(Art. 4). Civil liability of the owner for environmental damage must be secured before entering
the area (Art. 5). Under certain circumstances, the ship may be inspected while en route (Art. 6).
Once allowed to use the Northern Sea Route, the ship must follow the route assigned to it unless
otherwise instructed. The ship will be guided by means of either shore-based, aircraft,
conventional, icebreaker leading or icebreaker assisted pilotage, and appropriate radio contact
must be maintained (Art. 7). Compulsory ice breaking pilotage is provided for in the Vil’kitskii,
Shokal’skii, Dmitrii Laptev and Sannikov Straits (Art. 7(4)). The Administration of the Northern
Sea Route (Moscow) and two regional headquarters located in the ports of Dikson and Pevek
exercise general control of shipping operations (Art. 8). Navigation may be temporarily
suspended (Art. 9) and ships not complying with the above-mentioned requirements may be
ordered to leave the Northern Sea Route along a specified route (Art. 10). Finally, the
Administration of the Northern Sea Route and their Marine Operations Headquarters are not
liable for damage suffered by a ship or property located on board of it unless one can prove their
negligence (Art. 11).
64
Figure 5. Northern Sea Route passageways
Source: Map created by the Dalhousie University GIS Centre, 23 May 2008.
The Russian Federation is a party to MARPOL 73/78 (to all Annexes except VI) and the
1992 Fund Convention. According to Brubaker, there is an ongoing process of harmonization of
national law with CLC, the 1976 Protocol, the 1992 Protocol and the HNS Convention
(Appendix D) (Brubaker, 2005, 88). When this country overhauled its Commercial Navigation
Code in 1999, totally new rules on liability and compensation were adopted based on the 1996
HNS Convention. However, problems remain with respect to the practical implementation in
Russian law of the compulsory insurance certificate (conditions, form and issuing authority) as
far as the Northern Sea Route is concerned and authors have recommended that the 1990
Regulations should be amended in this respect (Egorov et al., 2006, 496–497).
These regulations only provide a general framework for shipping operations in the
Northern Sea Route. Details, especially fee rates for foreign ships using the services rendered,
even though duly foreseen (Art. 8(4)), were initially only predicted for July 1992 (Ivanov &
Ushakov, 1992, 17). As indicated below, they have recently been augmented.
65
1996 Guide to Navigation
The 1996 Guide to Navigation (Russian Federation, 1996a), a sizeable document of more
than 300 pages, was prepared by Russia under the International Northern Sea Route Programme,
a joint Norwegian-Japanese-Russian venture which ran from 1993 to 1999 (Tsoy, et al., 2004, 7).
It consists of three main parts. The first part, a general overview, outlines the geographical,
navigation and hydro-meteorological conditions, concluding with the full text of the
1990 Regulations (Russian Federation, 1996a, 81–84) and the 1996 Regulations (Russian
Federation, 1996a, 84–89). The second, and most substantial, part consists of a detailed
navigational description of the Kara, Laptev, East Siberian and Chuckchi Seas with their straits
and islands. This part concludes with a listing of visual and radio aids to navigation, including
floating, radio and lighted aids to navigation. The third part consists of a reference section on the
practice of ice navigation in different conditions, with or without the assistance of icebreakers,
and a section on salvage and rescue support. This part closes with the full text of the 1996
Requirements (Russian Federation, 1996a, 317–323) as well as illustrations of the visual aids to
navigation, different straits and islands, and ice manoeuvres. Despite the extensive descriptions
in this document, it does not replace nautical charts or other more detailed nautical publications.
1996 Regulations
All ships intending to use the Northern Sea Route should submit a request at least four
months in advance, including detailed information on the ship, possible deviations from the 1996
Requirements (see below), certification of insurance of liability for possible pollution damage,
and approximate date and purpose of the voyage, to the Administration of the Northern Sea
Route (Russian Federation, 1996b, Art. 2(1)). For an additional fee, this timeframe may be
shortened to one month, but in either case the owner receives an answer within 10 days
(Art. 2(3)). If the response is positive, an inspection needs to take place at the expense of the
owner (Art. 2(4)). Ships not completely satisfying the 1996 Requirements, as well as floating
structures, can be guided through the Northern Sea Route for an additional fee (Art. 2(5)). At
least 10 days before entering the route, the ship must inform the Administration of the Northern
Sea Route of the estimated time of arrival (Art. 2(5)), and a corrected time of two to five days
before arrival (Art. 2(7)). In addition, contact information with respect to the ship and the latter’s
draft, this notification contains mostly information on cargo and crew (Art. 2(6)). When entering
the Northern Sea Route, at least two pilots need to be taken on board, and the ship is brought
under the control of the West or East Marine Operations Headquarters for ice breaking support
and organization (Art. 2(8) & (13)). Despite the instructions given by the guiding icebreaker or
the advice and recommendations of the ice pilot, the master retains ultimate responsibility for the
ship (Art. 3(2) & (3)). When a ship does not comply with these requirements, it can either be
expelled from the route (Art. 2(17)), forced back into a convoy (Art. 2(18)), or possibly rely on
delayed assistance (Art. 2(21)). In all these cases, the extra expenses incurred will be borne by
the master of the ship. The ship, which is required to have the most recent nautical charts and
navigational publications on board (Art. 4(2)), must report at least twice a day to Marine
Operations Headquarters (Art. 2(22)). The position of the ship, which is instructed even in clear
or open water not to deviate considerably from the recommended route (Art. 4(6)), is thus
closely monitored by Russian authorities at all times.
66
1996 Requirements
Given the extremely hazardous navigation conditions that can be encountered when
sailing the Northern Sea Route, a detailed set of requirements have been adopted to ensure the
safety of navigation and to protect the Arctic marine environment from pollution. These
requirements, which must be fulfilled before entering the Northern Sea Route (Russian
Federation, 1996c, Art. 2(10) & (11)), as referred to in the 1996 Regulations, apply to all ships
with gross tonnage of 300 tonnes (registered).
At a minimum, the latter must possess at least the Ice Classes L1, UL or ULA of the
Russian Federation Register of Shipping (Art. 2(2)), corresponding approximately to the 1A,
1AS and AC1 ice class of the Lloyd’s Register (Tsoy & Yakovlev 2005: 20). Additional
requirements are provided with respect to the hull, which must be of a double-bottom type that
normally cannot be used for storage of petroleum products or other harmful substances (Art.
3(1)). Secondly, both the machinery plant and propeller blades must fulfil certain specific
requirements (Art. 4(1)–(6)). Thirdly, equipment to treat waste water must be on board, as well
as a bilge water separator, together with storage tanks sufficient for a 30-day navigation period
(Art. 5(1)–(3)).
Fourthly, special requirements apply to the stability of the ship because of icing and
under ice conditions, e.g., potential ice accretion on horizontal and lateral surfaces of the ship, or
when damaged (Art. 6(2) & (5)). Fifthly, minimal navigation and communications equipment
must be present (Art. 7(1)–(3)). Sixthly, certain provisions and emergency facilities are required,
e.g., a double store of fuel and lubricants sufficient for 30 days, spare parts and certain tools such
as portable gas-welding equipment (Art. 8(1)–(3)). Finally, as regards crew, its size must be
sufficient to allow for a three-shift watch, and the master should at least have a 15-day
experience of steering ships under ice conditions along the Northern Sea Route (Art. 9(1)–(2)).
Russian ship-source pollution standards for the Northern Sea Route are stricter at least in
some dimensions than normal MARPOL requirements. While the 1996 Requirements allow for
discharges of bilge water if the petroleum content is less than 15 ppm, other petroleum
contaminated discharges, such as ballast water from tankers, is prohibited (s. 5.2). Garbage
disposal at sea is prohibited (Kitagawa, 2001).
Recent Changes and Future Legal Regime
Although most of the present-day legal regime applicable to foreign shipping in the
Northern Sea Route dates back to the early 1990s, a few recent additions should nevertheless be
mentioned. First, as predicted (Juurmaa, 2006, 65), the fees to be paid by foreign ships for the
services rendered were recently augmented. Fees depend upon the cargo being transported, and
range from a low of US$5.97 per ton (timber products) and a high of US$103.99 per ton
(vehicles). Special rates, varying between US$10.01 for bulk liquid cargo and US$19.62 for
other cargoes, are provided for the transport of cargo to the Far North areas carried out according
to the federal budget and regional funds (Russian Federation, 2005, Tables 1 & 3). The ice
breaking fees also create a difficulty under the new economic conditions prevailing in the
Russian economy. They have been increasing regularly. By early 1994, for instance, they had
increased 1,376 times when compared to 1989 (Granberg et al., 2006a, 23). They are predicted to
increase further in a near future (Granberg et al., 2006b, 519). New legislative initiatives,
67
discussed below, explicitly include ice breaking costs in the determination of the fees to use the
Northern Sea Route (Egorov et al., 2006, 500).
Furthermore, the number of open ports in the Arctic has increased substantially. Initially,
only the port of Igarka had been opened to foreign ships, the Russian government later started to
publish yearly lists of open ports (Granberg et al., 2006a, 19). At present, this list includes 41
Arctic ports open to foreign ships, and additional ports where regulated visits for foreigners on
board foreign cargo ships or tankers with Russian crew members are allowed (Russian
Federation, 2006b). The opening of Arctic ports on a permanent basis is still an objective for the
future (Granberg et al., 2006b, 518).
There are indications that this legal framework was being overhauled in a piecemeal
fashion (Tsoy, 2005, 39–41). However, more fundamental changes with respect to the Arctic
marine shipping appear to be in the pipeline in Russia. First, a draft law was submitted to the
State Duma in 1998, entitled “On the Arctic Zone of the Russian Federation”, which would have
consolidated Russian sovereignty over its Arctic waters by relying once again on the sector
theory (Kovalev, 2004, 180). This draft, however, did not succeed, but seems to have been
replaced by a new draft law on the Northern Sea Route (Kolodkin et al., 2007, 269). According
to these authors, one of which participated in the actual preparation of this piece of draft
legislation, the new draft law provides for an authorization procedure for foreign warships and
possibly even ships carrying nuclear weapons or radioactive material, as well as other
environmentally harmful substances. Overflight by foreign warplanes would be prohibited and
the conduct of hydrographical surveys strictly regulated above or in the Northern Sea Route
(Kolodkin et al., 274–275). This legislative activity seems to be moving along a course set out by
the Russian maritime doctrine adopted by President Vladimir Putin in 2001 (President of Russia,
2001). In this doctrine, where the Arctic receives ample attention, the order of things is clear.
First one should secure the national interests of the Russian Federation with respect to the
Northern Sea Route, its central state administration, the ice breaking service, and only in last
order should one consider “the granting of equal access for interested shippers, including
foreigners” (President of Russia, 2001). It is therefore likely that substantial changes are coming
to the legal regime applicable to foreign shipping in the Russian Arctic in the not too distant
future.
CONCLUSION
This report has described governance of Arctic marine shipping as involving a complex
array of international agreements and practices in the areas of law of the sea, maritime safety and
seafarer rights and training, marine environmental protection, and liability and compensation,
which are facilitated or serviced by several international organizations. Private actors and their
contractual arrangements for the carriage of goods by sea, marine insurance and salvage add a
further governance overlay. Special national legislative and regulatory regimes of Canada and
the Russian Federation round out the governance mosaic.
This report concludes with a summary of key findings and suggestions for further
research.
68
KEY FINDINGS
Public International Law of the Sea
1. The 1982 Law of the Sea Convention establishes the over-arching legal framework for
governance of shipping in the Arctic. The Convention has struck a balance among powers
of coastal states, flag states and port states to exercise jurisdiction over shipping. The
legislative and enforcement jurisdiction of coastal states over foreign ships varies
according to the maritime zones (internal waters, territorial sea, contiguous zone and
EEZ).
2. The jurisdictional status of some Arctic waters remains controversial. Differing national
viewpoints over what waters may legitimately be claimed as internal and what waters
constitute international straits have yet to be fully resolved and could give rise to future
disputes concerning the exercise of jurisdiction over shipping activities.
3. The extent of coastal state powers to control foreign shipping in the Arctic has been
substantially bolstered by Article 234 of UNCLOS. However, the precise geographical
scope of coverage (waters covered by ice most of the year) and the breadth of regulatory
powers, in particular to unilaterally impose special construction, crewing and equipment
standards, could give rise to differing interpretations.
International Public Maritime Law
Maritime Safety Standards
4. Within its global mandate for the safety of international shipping and marine
environmental protection, the IMO has focused attention on Arctic shipping and
developed international voluntary Guidelines for Ships Operating in Arctic Ice-covered
Waters (Arctic Guidelines) for safety of ships and seafarers in the Arctic. The Guidelines
are currently under review by a correspondence group of the IMO Design and Equipment
Sub-Committee, which provides an opportunity to assess and strengthen guidance in the
area of ship construction, equipment and operations and possibly to consider the need for
a legally-binding code.
5. Safe navigation in ice-covered waters depends much on the knowledge and skill of the
ice navigator. The Arctic Guidelines urge all ships operating in ice-covered waters to
have on board at least one ice navigator with documentary evidence of completing an
approved training programme in ice navigation. Currently, most ice navigator training
programs are ad hoc and there are no uniform international training standards. Arctic
states may wish to consider if it would be practical and beneficial to develop training for
navigation in polar conditions and training in Arctic safety and survival for seafarers that
could be incorporated into IMO’s Standards of Training, Certification and Watchkeeping
(STCW 78/95).
69
6. The International Association of Classification Societies (IACS) has developed Unified
Requirements for member societies addressing essential aspects of construction for ships
of Polar Class. The provisions apply to ships contracted for construction on and after 1
March 2008, but are not mandatory. The IACS polar rules are incorporated into the IMO
Arctic Guidelines. Arctic states could consider making the harmonized Polar Classes
mandatory.
7. Specific international construction requirements for cruise ships operating in polar waters
have not been adopted. The cruise ship industry has formed a Cruise Ship Safety Forum
to further develop specific design and construction criteria for new vessels, but it remains
to be seen how navigation in polar waters will be addressed.
8. As international shipping in the Arctic increases, situations of interactions between ships
in the vicinity of one another will be governed by the International Regulations for
Preventing Collisions at Sea (COLREGS). COLREGS do not include rules for ships
navigating in ice-covered waters, and the application of some rules may need to be
considered with reference to ice navigation.
9. The International Maritime Dangerous Goods Code is a uniform international code for
the transportation of dangerous goods by sea and covers safe packing and stowage of
goods and segregation of incompatible substances. The Code may need to be reviewed
for the purpose of identifying any chemicals which may have a dangerous reaction if
exposed to extremely low temperatures during transportation in the Arctic.
Marine Environmental Protection Standards
10. MARPOL 73/78 establishes international standards for waste management and pollutant
discharges from ships and is applicable to Arctic waters. The Convention sets out
minimum standards but coastal states may unilaterally impose more stringent
requirements in their EEZ pursuant to Article 234 of UNCLOS. At this time, national
standards for regulating ship-source pollution in the Arctic are not consistent.
11. As transpolar shipping continues to grow, Arctic states may wish to consider the
adequacy for the Arctic for existing marine environmental standards set by MARPOL, in
particular discharge standards. Stricter environmental standards could be established
through the IMO by various means including designation of the Arctic Ocean beyond
national jurisdiction as a “special area” under MARPOL where more stringent than
normal standards could apply to oil, noxious liquid substances and garbage from ships.
12. All Arctic states are parties to the International Convention on Oil Pollution
Preparedness, Response and Co-operation (OPRC), 1990. The Convention sets out a
framework for cooperation which Arctic states could further apply in the Arctic, possibly
through the Arctic Council’s Emergency Prevention Preparedness and Response (EPPR)
Working Group.
70
13. For onboard pollution emergency planning under the OPRC in Arctic waters, the
shipboard oil pollution emergency plan (SOPEP) should include a written procedure to
effect damage repair and mitigate pollution. Crews should be trained in damage control
and materials to be used for this purpose should be on board.
14. With an increase in international shipping, it is likely that ships in need of assistance may
need to request refuge in sheltered waters of Arctic states. There are likely to be
significant practical difficulties to be encountered in finding and supporting suitable
places of refuge for ships in need of assistance in the Arctic and providing them with the
necessary support.
15. As international shipping in the Arctic grows and new ports are developed within the
Arctic Circle, it may be necessary for the maritime authorities of regional states to
consider whether they should coordinate port state control enforcement efforts through a
new dedicated MOU or whether existing MOUs are sufficient to enforce the higher
regulatory standards applicable to the Arctic. Arctic states would need to consider what
“uniform” standards would be enforced through port state control.
16. Expanded international shipping in the Arctic Ocean increases the possibility of
introduction of alien species and other pathogens through the discharge of ballast water.
The Ballast Water Convention provides a framework for measures to protect marine areas
from the hazards posed by ballast water, and encourages establishment of regional
agreements such as the Guidelines for Ballast Water Exchange in the Antarctic.
International Private Maritime Law
Carriage of Goods
17. The movement of goods and passengers by sea is largely regulated by the form of the
carriage contract with the carrier. The international customs and practices of the shipping,
cruise and merchant communities are more likely to govern the Arctic movement of
goods and passengers than international public maritime law.
18. Several Arctic states are party to international private law conventions which provide
standard carriage terms of relevance to Arctic shipping, such as the Hague or
Hague/Visby Rules respecting goods and the Athens Convention respecting passengers.
Many standard contract clauses have also been developed by industry bodies. For
example, “ice clauses” are commonly included in contracts for the movement of cargoes
in bulk to or from northern ports. These clauses give the carrier liberty to deviate from
the contracted voyage to prevent the ship from becoming icebound.
71
Liability and Compensation
19. The international liability and compensation regime is quite fragmented and limited.
Separate conventions address: oil pollution liability and compensation from tankers;
damages from the spill of bunker fuel carried in non-tankers, such as cargo ships; and
hazardous and noxious substance spills from ships. The Bunkers Convention and HNS
Convention are not yet in force because of an insufficient number of ratifications. Among
the Arctic states, only Norway has ratified the Bunkers Convention and only the Russian
Federation has ratified the HNS Convention. None of the conventions address damage to
the high seas beyond national jurisdiction.
20. While seven Arctic states have adopted the 1992 Civil Liability and Fund Conventions
for oil pollution compensation from oil tankers, the United States has chosen not to
become a Party resulting in substantial differences in liability and compensation
approaches. For example, although the international oil pollution liability and
compensation regime provides that compensation for environmental damages (other than
for loss of profit) shall be limited to actual restoration costs. U.S. regulations under the
Oil Pollution Act of 1990 provide compensation for diminution in value of natural
resources in addition to the cost of assessing such damages.
Salvage
21. In the Arctic, there is little or no governmental or commercial salvage response to support
commercial shipping. This is possibly less the case on the Northern Sea Route, where the
Russian Federation maintains a substantial fleet in support of shipping. Generally, there is
limited infrastructure for ship repair and/or salvage and pollution countermeasures
capability based in the Arctic basin.
22. In the event of a salvage operation, in general, but possibly less so in the case of the
Northern Sea Route, there is neither an extensive pool of ships of opportunity to draw
upon nor one company or consortium of companies with significant Arctic salvage
experience. There have been very few incidents requiring Arctic salvage in the recent
past, but this lack of a salvage capability is a concern to marine insurers.
Marine Insurance
23. The availability and cost of marine insurance is a major restraint on Arctic marine
shipping. A major constraint continues to be the lack of an actuarial record to enable
insurers to assess and cost the risk. However, the insurance industry appears to be willing
to underwrite Arctic shipping on a case-by-case basis. The London market has published
seasonal additional premiums for ships sailing to the Arctic.
72
Selected National Legal Frameworks
Canada
24. Canada, a leading proponent of extending coastal state legislative and enforcement
jurisdiction over foreign shipping within 200 nautical mile zones, has yet to fully
implement the control powers recognized in Article 234 of UNCLOS. Special ship
construction, equipment and crewing requirements and near zero oil pollution discharge
standards, established through the Arctic Waters Pollution Prevention Act and its
regulations, have only been applied to the 100 nautical mile pollution prevention area and
not extended to 200 nautical miles from Arctic coastlines. The Canada Shipping Act,
2001 and its regulations apply MARPOL pollution standards to the marine area outside
the 100 nautical mile zone out to 200 nautical miles, the outer limit of Canada’s EEZ in
the Arctic.
25. The Canada Shipping Act, 2001 authorizes regulations to be passed establishing vessel
traffic services (VTS) zones in an Arctic shipping safety control zone (s. 136) whereby
vessel reporting and clearance would be mandatory. Only a voluntary, non-regulatory
VTS zone referred to as NORDREG, has been developed for Arctic Canada.
The Russian Federation
26. The Russian Federation has an official policy of opening the Northern Sea Route for
foreign shipping, albeit under certain conditions. The exact geographical scope of the
legal regime applicable to the Northern Sea Route remains unclear. In its extreme reading
its means all waters bordered by a line running from the northern tip of Novaya Zemlya
to the North Pole and back to the Bering Strait, possibly including the southeastern, icecovered part of the Barents Sea.
27. The way in which fees for servicing ships transiting the Northern Sea Route are
calculated remains far from transparent when compared with other countries. The nondiscrimination issue (unlikelihood that Russian ships have to pay the same high rates that
are charged to foreign ships for the same services), seems to have been addressed
recently by the Russian Federation with the introduction of separate rates for ships
transporting cargo to the Far North under federal or regional financial assistance
programs.
28. The present-day legal regime applicable to foreign shipping has basically remained
unchanged since its creation during the first half of the 1990s. A major overhaul
(perestroika) of this regime is to be expected in the not too distant future.
73
Further Research
A large amount of research on Arctic shipping has already been carried out. In particular,
the International Northern Sea Route Programme (INSROP) undertaken by Norway, Russia and
Japan, with international participation, during the period 1993–1999, produced a very significant
data base covering almost all aspects of Arctic navigation. This was followed by a further broadbased Arctic navigation project, sponsored by the European Union entitled Arctic Operational
Platform (ARCOP) that, during the period 2001–2005, further developed, expanded and
enhanced the knowledge base in the area. This work was again taken up by the Ship and Ocean
Foundation of Japan under the Japan Northern Sea Route-Geographic Information system
(JANSROP-GIS) project which is still ongoing. The findings of these projects have formed the
best available knowledge base on Arctic navigation and its governance at the present time. This
research has significantly assisted the preparation of this technical report for the Arctic Marine
Shipping Assessment.
While this technical report has undertaken a broad exploratory overview of the many
facets of Arctic marine shipping governance, it does not purport to address comprehensively or
exhaustively all the issues raised. Additional research may be useful and necessary to provide a
more complete picture. Possible research activities could include, among others:
1. Comparative investigation of national construction and equipment standards for ships and
their consistency with IACS Unified Requirements for Polar Class ships.
2. Comparative examination of the extent to which states have followed the IMO Arctic
Guidelines.
3. Review of national approaches to controlling marine pollution from ships not subject to
the Arctic Guidelines and not strictly bound by international standards, namely, warships,
naval auxiliaries and other vessels owned or operated by a state and used only on
government non-commercial service.
4. A comparative study of how Arctic states are addressing liability and compensation,
especially for bunker fuel spills and hazardous and noxious substance incidents, since of
the Arctic states only Norway has adopted the Bunkers Convention and only the Russian
Federation has ratified the HNS Convention.
5. Drawing on IMO ships’ routings from other regions, an examination into how Arctic
states have addressed or could address ship routings in the Arctic in order to protect
sensitive areas of the marine environment and meet concerns of indigenous communities
and organizations.
6. Survey of existing and potential fee systems for ice breaking and other services, such as
navigational aids and search and rescue, provided by Arctic states.
7. Comprehensive look at the contingency planning and response capabilities of Arctic
states for shipping-related emergencies and pollution incidents.
74
8. Survey of ballast water practices and invasive species threats related to Arctic shipping
and a comparison of national approaches to ballast water exchanges and treatments.
9. Review of how bilateral and regional cooperation in addressing Arctic marine shipping
might be enhanced drawing from other international approaches and experiences.
10. Examination of national search and rescue capabilities in the Arctic for various types of
shipping and the adequacy of cooperative search and rescue agreements and
arrangements.
75
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Appendix A. List of International Maritime and Other Conventions
I. Maritime Safety
International Convention on Load Lines, 1966 [Load Lines Convention]
International Convention on Load Lines Protocol, 1988 [LL Protocol]
Convention on the International Regulations for Preventing Collisions at Sea, 1972 [COLREGS]
International Convention for the Safety of Life at Sea, 1974 [SOLAS Convention]
Protocol to the International Convention for the Safety of Life at Sea, 1978 [SOLAS
Convention]
Protocol to the International Convention for the Safety of Life at Sea, 1988 [SOLAS
Convention]
International Convention on Maritime Search and Rescue, 1979 [SAR Convention]
Convention on the International Maritime Satellite Organization, 1976 [INMARSAT
Convention]
The Torremolinos International Convention for the Safety of Fishing Vessels, 1977 [SFV
Convention]
Torremolinos International Convention for the Safety of Fishing Vessels Protocol [1993
SFV Protocol]
II. Marine Environment
International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution
Casualties, 1969 [Intervention Convention]
Protocol to the International Convention Relating to Intervention on the High Seas in
Cases of Oil Pollution Casualties, 1973 [Intervention Protocol]
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,
1972 [London Convention]
Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes
and Other Matter, 1996
95
International Convention for the Prevention of Pollution from Ships, 1973, as modified by the
Protocol of 1978 relating thereto 1973/78 [MARPOL (1973/78)]
Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime
Safety and Protection of the Marine Environment, 1982
International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990
[OPRC]
Convention on Biological Diversity, 1992 [CBD]
Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and
Noxious Substances, 2000 [HNS Protocol]
International Convention on the Control of Harmful Anti-Fouling Systems on Ships, 2001 [AFS
Convention]
International Convention for the Control and Management of Ships’ Ballast Water and
Sediments, 2004 [Ballast Water Convention]
International Convention on the Removal of Wrecks, 2007 [Wreck Removal Convention]
III. Seafarers
i. ILO Conventions
Minimum Age (Sea) Convention, 1920 (No. 7)
Unemployment Indemnity (Shipwreck) Convention, 1920 (No. 8)
Placing of Seamen Convention, 1920 (No. 9)
Medical Examination of Young Persons (Sea) Convention, 1921 (No. 16)
Seamen’s Articles of Agreement Convention, 1926 (No. 22)
Repatriation of Seamen Convention, 1926 (No. 23)
Officers’ Competency Certificates Convention, 1936 (No. 53)
Holidays with Pay (Sea) Convention, 1936 (No. 54)
Shipowners’ Liability (Sick and Injured Seamen) Convention, 1936 (No. 55)
Sickness Insurance (Sea) Convention, 1936 (No. 56)
96
Hours of Work and Manning (Sea) Convention, 1936 (No. 57)
Minimum Age (Sea) Convention (Revised), 1936 (No. 58)
Food and Catering (Ships’ Crews) Convention, 1946 (No. 68)
Certification of Ships’ Cooks Convention, 1946 (No. 69)
Social Security (Seafarers) Convention, 1946 (No. 70)
Paid Vacations (Seafarers) Convention, 1946 (No. 72)
Medical Examination (Seafarers) Convention, 1946 (No. 73)
Certification of Able Seamen Convention, 1946 (No. 74)
Accommodation of Crews Convention, 1946 (No. 75)
Wages, Hours of Work and Manning (Sea) Convention, 1946 (No. 76)
Paid Vacations (Seafarers) Convention (Revised), 1949 (No. 91)
Accommodation of Crews Convention (Revised), 1949 (No. 92)
Wages, Hours of Work and Manning (Sea) Convention (Revised), 1949 (No. 93)
Wages, Hours of Work and Manning (Sea) Convention (Revised), 1958 (No. 109)
Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No. 133)
Prevention of Accidents (Seafarers) Convention, 1970 (No. 134)
Continuity of Employment (Seafarers) Convention, 1976 (No. 145)
Seafarers’ Annual Leave with Pay Convention, 1976 (No. 146)
Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147)
Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147)
Seafarers’ Welfare Convention, 1987 (No. 163)
Health Protection and Medical Care (Seafarers) Convention, 1987 (No. 164)
Social Security (Seafarers) Convention (Revised), 1987 (No. 165)
97
Repatriation of Seafarers Convention (Revised), 1987 (No. 166)
Labour Inspection (Seafarers) Convention, 1996 (No. 178)
Recruitment and Placement of Seafarers Convention, 1996 (No. 179)
Seafarers’ Hours of Work and the Manning of Ships Convention, 1996 (No. 180)
Maritime Labour Convention, 2006 [MLC]
Convention Concerning Work in the Fishing Sector, 2007 [Work in Fishing Convention]
ii. IMO Conventions
International Convention on Standards of Training, Certification and Watchkeeping for
Seafarers, 1978 [STCW]
International Convention on Standards of Training, Certification and Watchkeeping for Fishing
Vessel Personnel, 1995 [STCW-F]
IV. Carriage of Goods and Passengers
International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading,
1924 [Hague Rules]
Protocols to Amend the International Convention for the Unification of Certain Rules of Law
Relating to Bills of Lading, 1968/69 [Hague-Visby Rules]
Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, 1974
Protocol to the Athens Convention Relating to the Carriage of Passengers and their
Luggage by Sea, 1976
Protocol to the Athens Convention Relating to the Carriage of Passengers and their
Luggage by Sea, 1990
Protocol of 2002 to the Athens Convention Relating to the Carriage of Passengers and
their Luggage by Sea, 2002 [Athens Protocol]
International Convention for Safe Containers, 1972 [CSC Convention]
United Nations Convention on the Carriage of Goods by Sea, 1978 [Hamburg Rules]
98
United Nations Convention on International Multimodal Transport of Goods, 1980 [Multimodal
Rules]
Draft Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea,
2008 [UNCITRAL Draft Convention]
V. Liability and Compensation
International Convention on Civil Liability for Oil Pollution Damage, (1969). [CLC Convention]
Protocol to the International Convention on Civil Liability for Oil Pollution Damage,
1976 [CLC Protocol]
Protocol to Amend the International Convention on Civil Liability for Oil Pollution
Damage, 1992 [CLC Protocol]
International Convention on the Establishment of an International Fund for Compensation for
Oil Pollution Damage, 1971 [Fund Convention]
Protocol to amend the International Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage, 1976 [Fund Convention]
Protocol to amend the International Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage, 1992 [Fund Convention]
Protocol to amend the International Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage, 2003 [Supplementary Fund Protocol]
Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material,
1971 [Nuclear Convention]
Convention on Limitation of Liability for Maritime Claims, 1976 [LLMC]
Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime
Claims, 1996 [LLMC Protocol]
International Convention on Salvage, 1989 [Salvage Convention]
International Convention on Liability and Compensation for Damage in Connection with the
Carriage of Hazardous and Noxious Substances by Sea, 1996 [HNS Convention]
International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 [Bunkers
Convention]
99
VI. Other Instruments
Convention on the International Maritime Organization, 1958 [IMO Convention]
Convention on Facilitation of International Maritime Traffic, 1965 [FAL Convention]
International Convention on Tonnage Measurement of Ships, 1969 [Tonnage Convention]
United Nations Convention on the Law of the Sea, 1982 [UNCLOS]
Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation,
1988 [SUA Convention]
Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms
Located on the Continental Shelf, 1988 [SUA Protocol 1988]
Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation, 2005 [SUA 2005]
Protocol to the 1988 SUA Protocol, 2005 [SUA Protocol 2005]
100
Appendix B. List of Laws and Regulations

Canada
Arctic Shipping Pollution Prevention Regulations, C.R.C., c. 353.
Arctic Waters Pollution Prevention Act, R.S.C. 1985, c. A-12.
Arctic Waters Pollution Prevention Regulations, C.R.C., c. 354.
Ballast Water Control and Management Regulations, S.O.R./2006-129.
Canada Marine Act, S.C. 1998, c. 10.
Canada National Marine Conservation Areas Act, S.C. 2002, c. 18.
Canada Shipping Act, 1985, R.S.C. 1985, c. S-9.
Canada Shipping Act, 2001, S.C. 2001, c. 26.
Canada Wildlife Act, R.S.C. 1985, c. W-9.
Charts and Nautical Publications Regulations, S.O.R./95-149.
Marine Liability Act, S.C. 2001, c. 6.
Marine Transportation Security Act, S.C. 1994, c. 40.
Marine Transportation Security Regulations, S.O.R./2004-144.
Migratory Birds Conventions Act, 1994, S.C. 1994, c. 22.
Navigation Safety Regulations, S.O.R./2005-134.
Oceans Act, S.C. 1996, c. 31.
Regulations for the Prevention of Pollution from Ships and for Dangerous Chemicals,
S.O.R./2007-86.
Ship Station (Radio) Regulations, 1999, S.O.R./2000-260.
Shipping Safety Control Zones Order, C.R.C., c. 356.
Steering Appliances and Equipment Regulations, S.O.R./83-810.
101
European Union
Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002
Establishing a Community Vessel Traffic Monitoring and Information System and Repealing
Council Directive 93/75/EEC, Official Journal, L208 (5 August 2002), 10–27.
Regulation (EC) No. 782/2003 of the European Parliament and of the Council of 14 April 2003
on the Prohibition of Organotin Compounds on Ships. OJEU L115/1, 9 May 2003.
Russian Federation
Decree of the Presidium of the Central Executive Committee of the U.S.S.R. of 15 April 1926,
On the Proclamation of Lands and Islands Located in the Northern Arctic Ocean as Territory of
the U.S.S.R., 32 Sobranie Uzakonenii i Rasporiazhenii Raboche-Krest’ianskogo Pravitel’stva
S.S.S.R. (Collected Laws and Decrees of the Workers and Peasants Government of the U.S.S.R.)
203 (1926). For an English translation see Koroleva, Markov & Ushakov, 1995, 105.
Federal Act on the Exclusive Economic Zone of the Russian Federation, 17 December 1998, as
amended, No. 191- ФЗ. English translation retrieved from United Nations Division for Ocean
Affairs and Law of the Sea:
http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/RUS_1998_Act_EZ.
pdf.
Federal Act on the Internal Maritime Waters, the Territorial Sea and Contiguous Zone of the
Russian Federation, 31 July 1998, No. 155- ФЗ, as last amended on 8 September 2007, No. 261-
ФЗ. English translation retrieved from United Nations Division for Ocean Affairs and Law of the
Sea: http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/RUS_1998_
Act_TS.pdf.
Instruction of the Government of the Russian Federation, on the authorization for cargo ships
and tankers flying a foreign flag during 2007–2008 to call at Arctic ports and points, located on
the Territory of the Russian Federation, 29 December 2006, No. 1855-p. Russian text retrieved
from: http://www.morflot.ru/html/sevmorput/Document/Rasp_Pravit_1855_r.doc.
Note to the Secretary-General of the United Nations, dated 21 February 2007, p. 2. Retrieved 6
January 2008 from Commission on the Continental Shelf:
http://www.un.org/Depts/los/clcs_new/submissions_files/nor06/rus_07_00325.pdf.
Regulations for icebreaker and pilot guiding of vessels through the Northern Sea Route. English
version published in the 1996 Guide to Navigation, 84–89. Retrieved from:
http://www.morflot.ru/html/sevmorput/Document/RULES%20OF%20NAVIGATION.doc.
Regulations for navigation on the seaways of the Northern Sea Route, 14 September 1990,
Izveshcheniia Moreplavateliam (Notices to Mariners), No. 29 of 18 June 1991. For an English
translation see Koroleva, Markov & Ushakov 1995, 133–139 and Franckx, 1993, 315–318.

102
United States
United States Oil Pollution Act of 1990 (OPA 1990). 33 United States Code (USC) 2701, Public
Law 101-380, August l8, l990.
Natural Resource Damage Assessment Regulations. 43 CFR Part 11 (1995), as amended at 61
Fed. Reg. 20609, May 7, 1996.
Maritime Transportation Security Act, 116 STAT. 2064 ; and regulations 33 C.F.R. Table
160.206.
103
Appendix C. National Maritime Boundaries in the Arctic
Maritime Boundary Agreements
States Date Area Delimited Notes
NorwayRussian
Federation
1957 Maritime boundary in the
Varanger Fjord
Agreement between Norway and the Soviet Union
concerning the Sea Frontier in the Varanger Fjord, done
at Moscow, 27 February 1957, entered into force 17
March 1958, 312 U.N.T.S. 289
United
States –
Russian
Federation
1990 Territorial sea and the 200
nautical mile zones in the
Arctic Ocean and Chukchi Sea
Agreement between the United States and the Soviet
Socialist Republic on the Maritime Boundary, done at
Washington, 1 June 1990, provisionally in force 15 June
1990, reprinted in (1990), 29 I.L.M. 941. The Agreement
is not yet in force because of opposition within the
Russian Federation.
Denmark
(Greenland)
and Norway
(Svalbard)
2006 Continental shelf
Fisheries zone
Agreement between Norway and Denmark together with
the Home Rule Government of Greenland Concerning
the Delimitation of the Continental Shelf and the
Fisheries Zones in the Area between Greenland and
Svalbard, done at Copenhagen, 20 February 2006,
entered into force 2 June 2006.
Iceland and
Norway (Jan
Mayen)
1981 Fisheries zone
Continental shelf
Rolston & McDorman, 1988, 33–34.
Iceland – Norway: Agreement on the Continental Shelf
between Iceland and Jan Mayen, done at Oslo, 22
October 1981, entered into force 2 June 1982, reprinted
in (1982), 21 I.L.M. 1222.
Denmark
(Greenland)
– Norway
(Jan Mayen)
1995 Continental shelf
Fisheries zone
Agreement between Denmark and Norway concerning
the Delimitation of the Continental Shelf Area between
Jan Mayen and Greenland and Concerning the Boundary
between the Fishery Zones in the Area, done at Oslo, 18
December 1995, entered into force 18 December 1985,
reprinted in United Nations, Division for Ocean Affairs
and the Law of the Sea, Office of Legal Affairs, (1996),
Vol. 31 Law of the Sea Bulletin, at p. 59.
(implementation of the 1993 International Court of
Justice case between the two States)
Denmark
(Greenland)
and Iceland
1997 Fisheries zone
Continental shelf
Agreement between Denmark along with the Local
Government of Greenland and Iceland on the
Delimitation of the Continental Shelf and Fishery Zone
in the Area between Greenland and Iceland, done at
Helsinki, 11 November 1997, entered into force 27 May
1998, reprinted in United Nations, Division for Ocean
Affairs and the Law of the Sea, Office of Legal Affairs,
(1999), Vol. 35 Law of the Sea Bulletin, at p. 35.
Canada and
Denmark
(Greenland)
1973 Continental shelf boundary
from Davis Strait to the
Lincoln Sea that terminates in
the Robeson Channel
Agreement between Canada and Denmark relating to the
Delimitation of the Continental Shelf between
Greenland and Canada, done at Ottawa, 17 December
1973, entered into force 13 March 1974, 950 U.N.T.S.
147.
104
Denmark
(Faroe
Islands),
Iceland and
Norway
2006 Continental shelf beyond 200
nautical miles
Agreed Minutes on the Delimitation of the Continental
Shelf beyond 200 nautical miles between the Faroe
Islands, Iceland and Norway in the southern part of the
Banana Hole of the Northeast Atlantic, done at New
York, 20 September 2006, available at

(accessed on 6 January 2008).
Maritime Boundary Disputes
Norway –
Russian
Federation
Barents Sea and
secondary area
in the Arctic
Ocean
The dispute over the 200 nautical mile zone boundary primarily is in the
Barents Sea but extends into the Arctic Ocean. The Russian maritime
boundary claim is based on a degree of longitude associated with a sector
line. The Norwegian claim is based on equidistance that gives full weight to
Svalbard.
Canada –
United States
Beaufort Sea Approximately 6,250 square nautical miles of overlapping claimed territorial
sea and 200 nautical mile zones. Canada has delineated its 200 nautical mile
zone using the 141st west meridian. The U.S. position is that the maritime
boundary is an equidistance line.
Canada –
Denmark
(Greenland)
Lincoln Sea Both Canada and Denmark (Greenland) accept that equidistance should be
used to delineate their overlapping 200 nautical mile zone claims (Pharand,
1993: 179). Disputed area is a modest 65 sq. nm split between two areas,
which arises because of the differing views over the base points to be used in
determining the equidistance line (Gray 1994: 138).
Overlapping Extended Continental Shelf Claims
Norway –
Russian
Federation
Continental shelf
areas beyond the
200 nautical
mile limits in the
Arctic Basin and
the Barents Sea
Within the Arctic Basin, both states claim a continental shelf area beyond
their 200 nautical mile zones. Respecting the possible overlapping
continental shelf areas in the Arctic Basin, Norway has indicated that the
Russian Federation has no objection to its 2006 submission to the CLCS and
that the submission and the recommendations of the CLCS are without
prejudice to an eventual maritime boundary agreement. The Russian
Federation clarified its position regarding Svalbard noting that “The
recommendations of the Commission in regard to the submission made by
Norway shall be without prejudice to the provisions of the Treaty concerning
Spitsbergen of 1920 and, accordingly, to the regime of the maritime areas
adjacent to Spitsbergen” (Russian Federation, 2007). The seafloor beneath
the “Loophole” beyond 200 nautical miles in the Barents Sea also involves
overlapping claims.
Norway
(Svalbard) –
Denmark
(Greenland)
Continental shelf
areas beyond the
200 nautical
mile limits in the
Arctic Basin
Referred to in Norway’s’ submission to the CLCS, where it is indicated that
Denmark (Greenland) does not object to the CLCS considering the
Norwegian proposed outer limit in this area and that a maritime boundary
will be negotiated subsequent to the engagement of the CLCS.
Canada –
United States
Continental shelf
areas beyond the
200 nautical
mile limits in the
Arctic Basin
Possible overlapping claim on the continental shelf beyond 200 nautical
miles in the Beaufort Sea.
Canada –
Denmark
(Greenland)
Continental shelf
areas beyond the
200 nautical
mile limits in the
Arctic Basin
Possible overlapping claim on the continental shelf area beyond 200 nautical
miles.
105
Russian
Federation –
Denmark
(Greenland) and
Russian
FederationCanada
Continental shelf
areas beyond the
200 nautical
mile limits in the
Arctic Basin
In response to the submission by the Russian Federation of documentation
respecting its proposed outer limit of the continental shelf in the Arctic to the
Commission in 2001, both Canada and Denmark explicitly noted that the
Russian submission and recommendations by the Commission were “without
prejudice to the delimitation of the continental shelf” between the two States.
106
Appendix D. Ratifications of International Maritime Law Agreements and Instruments
Abbreviations: (√) = Ratification; (–) = Not Party; (D) = Denounced; (R) = Revoked; (a) = Accession, (A) = Approval; * = In Force; ** In Force 17 September
2008; C188 = Work in Fishing Convention; C180 = Seafarers’ Hours of Work and the Manning of Ships Convention; C166 = Repatriation of Seafarers
Convention; C164 = Health Protection and Medical Care (Seafarers) Convention; C163 = Seafarers’ Welfare Convention; P147 = Protocol of 1996 to the
Merchant Shipping (Minimum Standards) Convention; C147 = Merchant Shipping (Minimum Standards) Convention
Safety Environment Seafarers
SOLAS London MARPOL 73/78 OPRC ILO IMO
Arctic States
COLREGS 1972*
Convention 1974*
Protocol 1978*
Protocol 1988*
SAR 1979*
Load Lines 1966*
London Convention 1972*
Protocol 1996*
Annex I/II*
Annex III*
Annex IV*
Annex V*
Protocol 1997 (Annex VI)*
Salvage 1989*
Convention 1990*
OPRC/NHS 2000
Anti-fouling 2001**
Ballast Water 2004
Wreck Removal 2007
C147 1976*
P147 1996 Protocol*
C163 1987*
C164 1987*
C166 1987*
C180 1996*
C188 2007
Maritime Labour 2006
STWC Convention 1978*
STWC-F Convention 1995
Canada √ √ — — √ √ √ √ √ √ — — — √ √ — — — — √ — — — — — — — √ —
Denmark √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ — √ — — √ √ √ — — √ — — √ √
Finland √ √ √ √ √ √ √ — √ √ √ √ √ √ √ — — — — √ √ √ √ — √ — — √ —
Iceland √ √ √ √ √ √ √ √ √ √ — √ — √ √ — — — — √ — — — — — — — √ √
Norway √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ — √ √ — √ √ √ √ — √ — — √ √
Russian
Federation √ √ √ √ √ √ √ — √ √ √ √ — √ — — — — — √ — √ — — — — — √ √
Sweden √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ √ — — √ √ √ √ — √ — — √ —
United
States √ √ √ √ √ √ √ — √ √ — √ — √ √ — — — — √ — — — — — — — √ —
107
Appendix D, continued
Carriage of Goods and Passengers Liability and Compensation
Athens CSC CLC FUND LLMC
Arctic States
Convention 1974*
Protocol 1976*
Protocol 1990
Protocol 2002
Hague Rules 1924*
Hague-Visby Rules 1968*
SDR Protocol 1979*
Hamburg Rules 1978*
Convention 1972*
CSC Amendments 93
Multimodal Transport 1980
Convention 1969*
Protocol 1976*
Protocol 1992*
Convention 1971
Protocol 1976*
Protocol 1992*
Protocol 2003*
Convention 1976*
Protocol 1996*
HNS 1996
Bunkers 2001**
Canada — — — — R — — — √ — — D √ √ D √ √ — — √ — —
Denmark — — — — D √ a — √ — — D √ √ D √ √ √ D √ — —
Finland — — — — D √ √ — √ — — D √ √ D √ √ √ D √ — —
Iceland — — — — — — — — √ — — D √ √ D √ √ — — — — —
Norway — — — — D √ √ — √ — — D √ √ D √ √ √ D √ — √
Russian Federation √ √ — — — a a — √ — — D √ √ D √ √ — — √ √ —
Sweden — — — — D √ √ — √ — — D √ √ D √ √ √ D √ — —
United States — — — — √ — — — √ — — — — — — — — — — — — —
Abbreviations: (√) = Ratification; (–) = Not Party; (D) = Denounced; (R) = Revoked; (a) = Accession, (A) = Approval; * = In Force; ** In Force 21 November
2008
Source: Table compiled by the authors from IMO Status of Conventions by country, , Comité
Maritime International, Yearbook 2005–2006, Antwerp, CMI, December 2006, , and
ILOLEX Database of International Labour Standards, http://www.ilo.org/ilolex/index.htm (as of 1 April 2008).

Taxation Law X, aged 42 and a qualified lawyer

MA 613
Taxation Law
Individual Assessment
TRIMESTER 2, 2020
Day/date: Friday, 4 September 2020
Time: 5:00 pm
Duration N/A
Total Marks: 20 marks
Weight: 20%
Unit Coordinator Ms. Irene Collins
Moderator Prof. R. M. Wright
No. of pages 02 pages (including this cover page)
Unit learning outcomes assessed:
a. Appreciate and understand the factors influencing the creation and interpretation of income tax legislation and their relationship to accounting concepts and practice
b. Explain and discuss income tax law in Australia and more particularly the taxation of capital gains, fringe benefits tax, goods and services tax and small business tax concessions.
c. Explain and demonstrate how to calculate the taxable income for different types of taxable entities.
d. Apply technical knowledge and analytical skills to evaluate and solve tax problems.
Instructions to Candidates
1. This is an individual assessment.
2. Please complete all questions.
3. You may discuss with your group members while you are completing this assessment.
4. Please submit it to Moodle using the Turnitin submission link.
Student ID: __________________________________________________________
Name: ______________________________________________________________
Part A (12 Marks)
Q1. (4 Marks)
X, aged 42 and a qualified lawyer, is in the process of completing his income tax return for the income year ending 30 June 2020. He seeks your assistance/advice on how to deal with the following transactions in his tax return:

On 15 October 2019, X sold all his shares in X1 Ltd, a company listed on the Australian Stock Exchange. He bought the shares on 7 July 2010 for $50,000 and sold them for $150,000. X purchased the shares with the purpose of making a profit from their sale. (X did receive dividends during the time he owned the shares). X advised his stockbroker to place the sale proceeds in a cash management trust that had its headquarters in Hong Kong. This trust was paying 15% interest per annum on short-term deposits and many Australian investors were using the trust. X thinking was to hold the money temporarily in the cash management trust while he decides what to do with the funds in the long-term. Unfortunately, on 30 December 2019, X’s stockbroker (Y) advises X that the proprietors of the cash management trust were professional fraudsters and that they had defrauded numerous investors of millions of dollars. In short, X’s $150,000 has also been stolen and there is no chance of getting any of the money back . Between 2009 and 2020, X only bought and sold other shares around five times. As at 30 December 2019, X was still thinking about the long-term use of the $150,000. X received an interest payment from the fund of $5,500 on 15 November 2019. X has a net capital loss of $20,000 from the 2015-16 income year.

Q2 (4 Marks).
X is a beneficiary in a family discretionary trust (Happy Family Trusts (HPT) that X’s parents established 30 -years ago. The HPT owns three investment properties and two small businesses. Like many discretionary trusts, the trustee of the HPT has an absolute discretion to pay profits to any beneficiary listed in the schedule to the trust deed. X is listed as one of the beneficiaries in the schedule. The HPT had an accounting profit of $250,000 for the financial year ending 30 June 2020. The net income (taxable income) under s 95(1) of the ITAA 1936 for the income year ending 30 June 2020 was $300, ,000. The difference was mainly attributable to lower tax depreciation (compared to accounting) on depreciating assets. The difference was not due to any capital gains/capital profits. The trustee exercised his discretion on 29 June 2020 in favour of X (and other beneficiaries). X was allocated $50,000 out of the profits for the year. This amount was paid into X’s bank account on 29 August 2020.

Q3 (4 Marks).
X has always worked during his adult years. For the last 20 -years, he has worked in the Finance and Banking law for a major law firm Freeheels. X decides to change his career path and now wants to work in taxation law. His employer Freeheels agrees to transfer him to the Taxation Law division but only on strict conditions as the company does not normally allow an established employee lawyer with considerable expertise in an area to change their area of specialty, and effectively start from “scratch”. One of the conditions is that X must immediately enrol in the Master of Taxation degree at the University of Sydney and that he undertakes four taxation law subjects over the next two years. X agrees. Unfortunately for X , the firm insists that X meets all his own costs of the degree, aside from textbooks. For the income year ending 30 June 2020, the course fees (both courses were undertaken in the last semester 2019 and Semester One, 2020) came to $25,000 and the textbooks came to $1000. Another condition imposed by the firm is that X’s salary will decrease by 20% when he starts in the Tax Division (i.e. Ron’s salary will drop from $200,000 to $160,000). X started in the Tax division in February 2020. If X should fail any course in his Master of Taxation, he will take a further salary drop of 10%. After two years in the Tax division, X’s salary will return to its normal level (i.e. $200,000).
On 25 May 2020, X presents his receipts for the textbooks he purchased ($1000 to the accounts department of Freeheels, and that department paid the amount ($1000) on the receipts into X’s normal bank account (where salary is deposited).
X also advises that he had $50,000 in net capital losses for the 2018-19 income year (from a sale of shares). These are the only losses available to X.
Advise X on the income tax consequences of the above transactions, events, etc. Your advice must be supported by relevant tax legislation, tax cases and/or tax rulings, tax principles and examples.

PART B (8 Marks).
Q1. (3 Marks)

Y, an Australian resident, is the sole shareholder of ABC Pty Ltd, an Australian resident company. In this income year, ABC Pty Ltd made an interest free loan of $100,000 to Y. By the income year end, the company waived 40% of the loan. The balance of the loan remains outstanding by the company’s lodgement date. The company’s distributable surplus for the income year is $50,000.

Advise the tax implications of the above transaction for Y. How will your answer be different if the shareholder of ABC Pty Ltd is a wholly owned subsidiary of another company incorporated in Australia? Provide examples.

Q2. (5 Marks).
Explain ATO Tax Termination TD 2007/28 Div 7A: “present legal obligation” for ITAA 1936 s. 109Y (2): Income Tax: What is a “present legal obligation” of a private company for the purposes of Subsection 109Y (2) of Division 7A of Part III of the Income Tax Assessment Act 1936? Refer to the relevant legislation, explanatory memorandum and cases.

End of Document
………………………………………….

Time To Kill Film And Literature English Literature Essay

For years people have been comparing film and literature. These two genres have been doggedly competing since the first book came out as a movie. John Grisham’s A Time to Kill is no different. This heart wrenching novel was just as popular in its film version produced by Arnon Milchan. Though extremely similar, there are a variety of artistic differences between them, but both capture the same dark tale.

John Grisham had no idea that he would become a bestselling author of numerous books including A Time to Kill. He was born on February 8, 1955 in Jonesboro, Arkansas. In his younger years, he hoped of becoming a professional baseball player. He later changed his mind and attended Mississippi State University where he majored in accounting. Heading in another direction, Grisham buckled down to study law. He then got a job practicing in Southaven specializing in criminal defense and personal injury litigation. After being elected to the state House of Representatives in 1983, John began a career writing novels in addition to holding his political position. He currently splits his time between his wife and two children while still writing and practicing law.

John Grisham now has over 275 million books in print worldwide, each of them an international best seller. All of his success stems back from his very first book, A Time to Kill. He got the idea for the novel while listening to the testimony of a young rape victim. Grisham started forming his book around the idea of the girl’s father murdering his daughter’s attackers. For the next three years, John woke up at five a.m. daily to spend a couple hours writing this novel before going to work. Once he had the book completed, he was turned down by numerous publishers. It was finally sold and printed by Wynwood Press in June of 1988. Its popularity grew with the success of Grisham’s succeeding novels.

The book begins in the small town of Clanton, Mississippi with the brutal rape of Tonya Hailey, a ten year old African American girl. She is placed in critical condition after being found dumped near a creek in what was the last of several attempts to end her life. Tonya was vaguely able to describe her attackers and ask for her father before falling unconscious due to her life threatening injuries. The county sheriff, Ozzie Walls, is quickly able to identify and apprehend the two white men who assaulted her, throwing them in the county jail and setting them up with an immediate date in court.

The case becomes instantaneously infamous, drawing huge crowds for the boys’ trial. In the midst of the mayhem, Carl Lee, Tonya’s father, confronts Jake Brigance, a young white lawyer with a good reputation. He wants to know what Jake would do if anyone raped his daughter and lets on to his plans of seeking revenge. True to his word, Carl Lee publicly kills the men as they are being lead out of the court house after their bail hearing. He is quietly taken into custody due to the controversy already buzzing around the town. Jake feels compelled to represent his friend especially since he would have felt compelled to do the same if their roles had been reversed.

Carl Lee’s case causes a buzz across the country and attracts vast media attention. As the seriousness of the trial grows, both sides begin taking immediate action. The small southern town suddenly finds that they have been noticed by more than just the media. The Ku Klux Klan regains a foothold in the south and terrorizes anyone involved in the case. On Carl Lee’s side, the NAACP swoops in and throws around money to try to get him to allow a big shot lawyer from the North to replace Jake.

With the tension growing, the Klan goes as far to plant a bomb that destroys Jake’s house. Realizing how deep he is already in this mess, he decides to hold nothing back, fully committing himself to Carl Lee’s case with the help of his old boss and a young female law student. At the brink of the trial, both sides step up their antics. The Klan attacks Jake’s secretary causing her husband to die of a heart attack. They also target his interning law student, Ellen. Some of the Klan’s members begin to question their actions ultimately resulting in the death of their leader. All of this chaos escalates despite the National Guard being called in to Clanton due to the uprisings caused by the trial.

The trial is held, pending of Carl Lee’s plea of insanity. The case is thrown another twist when both sides’ psychiatrists are discredited. With the verdict up in the air along with all of the evidence, the outcome seems to rely on the closing arguments. Jake rests his case after emotionally reminding them about the reason the crime was committed. The jury argues endlessly for days, but one particular woman advocates for a non guilty verdict. She asks them to make the same decision that they would make if the little girl had been white, ending the book with Carl Lee’s acquittal.

As the book’s popularity grew over the years, Arnon Milchan decided to help produce the film version in 1996. Originally born in Tel Aviv, Palestine on December 6, 1944, Milchan got his start by producing plays for the Israeli stage. Over time, he has become a very successful American movie producer. He has taken part in many iconic films, including Pretty Woman and Fight Club. Now living in Los Angeles, he has three children with a former model, two of whom are also in the movie business.

This movie was filmed entirely in Clanton, Mississippi, where the book took place. The town has a museum with props and other memorabilia from the making of the movie. They also preserved the sets and buildings used in the filming process that are now open to the public. The town offers guided tours that provide behind the scenes information about the production of “A Time to Kill.”

The film also begins with Carl Lee Hailey’s daughter being viciously attacked by two white rednecks. She is found near death and rushed to the hospital where her family is called to gather. The local sheriff quickly deducts the identity of the attackers, arresting them considerably soon after the girl is discovered. The local African American community is outraged by the attack and gathers to show their support for the Hailey’s by congregating in large numbers at the trial.

The young and extremely handsome Jake Brigance also makes an appearance to show his support for the Hailey family on the day of the trial. He is approached afterwards by Carl Lee who is clearly disturbed by everything that has happened. He asks Jake about a resent case where a group of white boys went unpunished after raping a black girl. Then they have a serious conversation about Carl Lee wanting to kill the men on trial. Jake is both shocked and understanding when he actually goes through with it, murdering his daughter’s attackers in the basement of the court house.

Soon after, the sheriff stops by to arrest Carl Lee who is spending his last free minutes with his daughter. Jake is also quickly brought to the county jail where he agrees to be Mr. Hailey’s lawyer. The locals are all stunned by the events taking place in their small town and even more thrown off by the sudden publicity. The NAACP and other African American leaders quickly arrive and try to convince Carl Lee of allowing them to provide his lawyer. He tells them off, upset that they lied, telling people that the money they were raising would be going to support his family.

Jake’s wife is upset that he took the case, even more so when they start receiving death threats. She decides to leave with their daughter when her husband refuses to drop the case. Now seemingly alone, with nothing to devote his time to but the case, Jake turns to his old adviser, Lucien. He is also surprised when Ellen, a prestigious young law student, practically demands to help him with Carl Lee’s trial. They help dig through old cases and investigate potential jurors to aid Jake’s cause.

The Ku Klux Klan also becomes very active, reawakened by the murder of the white boys. They attempt to place a bomb under Jake’s porch, but end up starting a fire with a burning cross when they are not successful. They also kidnap, beat, and abandon Ellen outside of town the night before the trial. The next day, they all show up at the court house where a riot breaks out between Carl Lee’s supporters and the Klan.

Despite the havoc throughout the town, the trial continues with Carl Lee pleading insanity. Lucien brings in an old friend to support this claim, but he ends up being discredited due to a previous relationship with a minor. Luckily, Jake is also able to discredit the state’s psychiatrist who has found every patient in his history to be sane. Jake is able to sway the jury with his moving closing arguments by asking them to picture Carl Lee’s daughter as white. When Carl Lee is acquitted, Jake brings his family out to his house so that both men’s daughters can play together in the final moments of the film.

The book and movie version of this emotional story are both very similar to one another. The story told in each of them is extremely similar. The setting is also carefully and accurately portrayed through both versions. The detail in the town and even the court house scenery were all painstakingly followed in the movie to have the same effect as the descriptiveness of the book. All of the aspects were very spot on, especially the time sensitive features such as the clothing, vehicles, and architecture of the time. These effects collectively created authenticity as well as a connection between the movie and book.

The plot was also very accurate throughout both versions. Most of the events in the film directly corresponded back to the plot of the book. They each opened with the rape of Carl Lee’s daughter, followed by the timely arrest of her attackers. Carl Lee also told Jake of his plans to murder the men on trial in the two different versions. The coverage of the Ku Klux Klan’s involvement throughout the trial along with the NAACP was similar in both cases as well. The book and movie each use the mob scene outside of the court house to escalate the plot even further, heightening the climax of both. The overall story line was approximately equivalent in the film and book.

The characters throughout each version also maintain many similar qualities. In both, Jake is stubbornly determined to give this case his all despite the numerous threats to his own life. He is devoted to his family, but not so much that he can avoid doing what is right. Sheriff Ozzie is also consistently good hearted yet tough as his position requires him to be. His character struggles with separating his opinions from his position in each adaptation. Lucien maintains his love of law and liquor along with his other reoccurring missteps in both the book and film as well. All of these combine to give both a serious and heavy mood along with the shared theme of justice.

Although the two versions have a majority of things in common, there are a handful of differences that set them apart. Most of these variations are in the events that occur throughout the movie. In the film, Carl Lee asks about four white boys who never even did jail time in a rape case. Also unique to the movie is Carl Lee’s arrest at the hospital instead of his home. Naturally many events in the book had to be left out for practical purposes. In the book, Sheriff Ozzie uses an informant to find and get evidence on the men who raped Tonya. They left out Carl Lee picking up the gun from a friend in Memphis as well. Probably most significant is the difference in how Carl Lee was acquitted. A juror forces the others to imagine the rape, but with a white girl in Tonya’s place, in order to get the others to vote not guilty in the book. In the movie, Jake gives that same speech to the jury in his closing argument to sway them for the acquittal of Carl Lee.

There are also a variety of differences throughout the characters from the film to the book. Ellen plays a much more pivotal role throughout the movie than was originally written. She takes over much more than she initially assisted. Carl Lee’s character is also significantly different between the two versions. In the film, he remains solemn throughout the case, knowing the magnitude of his situation. His actions in the book are much less thought through and his faith in Jake openly wavers as well. He is not as content to sit there while his fate is being determined by strangers in a court room.

There are always going to be details from books that have to be withheld for the sake of the practicality of the movie. Some aspects of a novel just can not be translated into a film. The viewpoint, for one, switches from person to person allowing for more insight and significance to be shed on some of the lesser characters throughout the book. This especially emphasizes the importance of the judges and jurors that is not relayed through the film’s viewpoint. It also allocates for more light hearted moments, which were rather rare throughout this story, permitting the focus to abscond from the trial at times. These fine points allow the book to pertain more around the lives of the vital characters, instead of being solely focused on the trial as it is in the movie.

No matter what, there will always be differences between books and movies, just as there will always be people comparing literature to and films. The never ending battle between these two genres makes comparing the two all the more interesting. Despite their differences, both versions do the tragic story justice in A Time to Kill.

Sources

“A Time to Kill.” Canton Movie Museums. Canton Convention and Visitors Bureau, n.d. Web. 03 Sept. 2012. .

A Time to Kill. Dir. Joel Schumacher. Perf. Matthew McConaughey and Samuel L. Jackson. Warner Bros., 1996. Videocassette.

“Arnon Milchan Biography (1944-).” Film Reference. Advameg, Inc., n.d. Web. 03 Sept. 2012. .

“Bio.” John Grisham. Doubleday, Random House, Inc., n.d. Web. 03 Sept. 2012. .

Grisham, John. A Time to Kill. New York: Wynwood, 1988. Print.