SALVAGE Defending the Salvor's Ability to Prevent Pollution With zero tolerance of pollution now the norm, salvors are becoming increasingly concerned at the lack of responder immunity under the International Maritime Organization's Bunker Spills Convention. This convention is a relatively new instrument. Earlier conventions dealing with pollution liability and compensation, such as the Civil Liability Convention and the Hazardous and Noxious Substances Convention, do offer a degree of protection from civil claims from third parties. In the case of the Bunker Spills Convention, however, IMO delegations failed to deliver immunity for salvors and other emergency responders. Indeed, some delegations, following the diplomatic conference adopting this convention, openly declared their desire to have the option to pursue a salvor in the event of bunker pollution during a salvage operation. This is an issue of serious concern for members of the International Salvage Union (ISU). Most salvage operations today commence with the removal of bunkers (or internal pumping to a more protected location), in order to achieve a rapid reduction in the level of environmental threat. This work is often difficult and dangerous. It is carried out as quickly as possible and, in many cases, in weather conditions and sea states which are far from ideal. The potential for a spill during this work is everpresent. In some hostile jurisdictions, salvors are only too well aware that their personnel, assets and vessels could be seized, should something go wrong during a salvage. Several years ago, a Salvage Master was amongst those detained following the Tasman Spirit tanker accident in Pakistan. In the European context, the UK reaction following the Sea Empress spill at Milford Haven in 1996 sounded the alarm bells. In this case, a huge, multi-million-pound fine was imposed on Milford Haven Port Authority. While the fine was subsequently reduced on appeal, the use of a little-known law - providing for strict liability - to prosecute this authority was a subject of much concern. There has been little but disappointment on the responder immunity front for salvors until very recently, with some indications that things may be taking a more favourable turn. In the UK, for example, draft legislation to implement the Bunker Spills Convention provides for responder immunity. The subject of responder immunity was on the agenda at a March meeting between ISU President Hans van Rooij and John Richardson, Head of the EU Maritime Task Force. This meeting was organised to discuss the ISU's response to last year's EU Green Paper on Future Maritime Policy. The ISU submission sets out a 10-point "Action Plan for Spill Risk Reduction in EU Waters". One of the points calls for responder immunity. The ISU submission states: "Whilst salvors should remain potentially liable to the shipowner if they are at fault, they should be protected from third party claims which can involve speculative litigation in a variety of jurisdictions. This lack of protection, which is afforded to the salvor in other conventions, is a deterrent to the salvor attending a casualty." One possible remedy would be a pan-European move to apply a Resolution associated with the Bunker Spills Convention. This allows contracting parties to introduce legislation to protect responders acting to "prevent or minimise the effects of bunker oil pollution". This Resolution recommends that "persons taking reasonable measures to prevent or minimise the effects of oil pollution be exempt from liability, unless the liability in question resulted from their personal act or omission, committed with the intent to cause damage, or recklessly and with knowledge that such damage would probably result". It is hoped that the EU will act to apply this Resolution. Work is now under way to clarify the positions of each EU member state on the immunity issue. TUTOR-SALIBA CORPORATION Contact: James Foster 818-362-8391 EM1022 - 2001 Blount 55'x 17'3"x 10' Model Bow Tug Boat. S/N 1110974 c/w Twin Cat 3412 w/615hp, twin disc trans MG5170DC, ratio 4.50:1, Northern Lights 984 gen set w/M32C/32 kw, La Marche A224012VA1 constavolt, 110 cfm elec comp, (5) bitts, (2) stern mtd pullmaster, hyd facing winches, (4) VHF, Furuno radar, Northstar 951X plotter, jog steering, facing winch controls, datamarine depth sounder, (2) 14' push knees, full perimeter tire bumper. $625,000.00. EM1068 Official # 534891 - 1021 net/Gross Tons - Built 1928 in Oakland CA. LOA 285' - Beam 38' - Depth 12'. Flat Deck Barge, riveted steel construction, raked bow and stern. 6" asphalt wear deck with 3' steel fenced sides running port and starboard. Barge is also outfitted with 2 Clyde two drum waterfall winches. $300,000.00. EM1071 - 110' x 34' x 11' Flat Deck Barge, c/w 12 hatches, 4 bitts, 4 kevels, 30 degree raked bow/stern, triple rub rails, 4" concrete wear deck. $125,000.00. EM1163 - 125' x 34' x 9' Flat Deck Barge s/n 1065170 c/w 12 hatches, 4 bitts, 6 kevels, 25 degree raked bow/stern, stern w/skaggs. $125,000.00. EM1105 - 2001 Corn Island 200' x 60' x 12' Crane Barge s/n 1120580, c/w 18 hatches, 4 bitts, 10 kevels, 28 degrees raked bow, sq stern, single rub rail, 2 longitudinal bulkheads offset @ 22' 6" from hull wall, (3) 44" x 44" spud pocket, 4 fairleads, 9 Smith-Berger MD1218 deck sheave, (2) 42" x 42" x 90' spuds, 1974 Skagit RB90W-GM three drum waterfall winch w/Detroit V671, twin disc, 1 ¼" cable, air controls, 1975 Skagit RB90WGM three drum waterfall winch w/Detroit V671, twin disc, 1 ¼" cable, air controls, Ingersoll-Rand air tugger, winch control tower w/elec & air controls, Ingersoll-Rand P185WJD 185 CFM comp w/John Deere 4cyl, Multi-Quip DCA25SS1U, 25 kva gen set w/Isuzu 4 cyl, (2) 20' shipping containers w/windows and lights, tire bumpers both sides, ABS international load line. $2,000,000.00. - SOLD - Meanwhile, salvors remain concerned about the criminalisation of shipping accidents following recent highprofile incidents, many in European waters. The EU's Ship Source Pollution Directive has given fresh oxygen to this trend. The ISU supports the shipping industry's legal challenge to the Directive. This action has been referred to Europe by the London High Court and is expected to be heard in the European Court of Justice later this year. Environmental Awards Another measure proposed under the ISU's Action Plan to protect EU waters from catastrophic spills is the suggestion that a European Fund for Environmental Awards should be established. This Fund would be used to reward salvors who succeed in preventing pollution in EU waters and, secondly, to reward coastal communities providing places of refuge in the national and, in some cases, international interest. This is difficult area. Under an existing Directive, EU member states are obliged to nominate places of refuge. Most have taken action on this front, but few are prepared to disclose the locations in the public arena. Governments are concerned that too much transparency could blight these coastal communities and stifle their economic development. The ISU has been campaigning for separate Environmental Awards over the past year. The intention is to supplement the existing, traditional remuneration for property recovery with a new and distinct award for services delivering environmental benefit. The ISU has much to do to convince governments and industry partners of the value of this change. During the meeting with John Richardson, the ISU argued that Coastal States have an 26 · MarineNews · May, 2007 USCG photo by Petty Officer Mike Zolzer
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