Doctor of Philosopy
Faculty of Law
Morrison, Anthony, Shelter from the Storm – the problem of places of refuge for ships in distress and proposals to remedy the problem, Doctor of Philosopy thesis, Faculty of Law, University of Wollongong, 2011. http://ro.uow.edu.au/theses/3218
When a ship gets into difficulties, one of the main options of an owner or master is to seek to put into sheltered waters where the difficulties can be remedied or minimised before proceeding on the voyage. This place is referred to as a ‘Place of Refuge’. Since 1999, there have been three major incidents involving ships, laden with crude oil and other hazardous cargoes, requesting and being refused access to places of refuge. In two of these cases, involving the Erika and the Prestige, the ships subsequently sank and caused severe pollution damage. In the third, involving the Castor, a disaster was narrowly avoided.
The primary aims of this thesis are to address the issues that arose from the three incidents, to analyse the two proposals to deal with these issues, namely, voluntary Guidelines issued by the International Maritime Organisation (IMO) and the proposal by the Comite Maritime International (CMI) for a discrete convention on places of refuge and assess their adequacy to deal with future incidents. In doing so, the thesis assesses the manner in which the problem of places of refuge is treated, first, under international law; second, on the international level, by international bodies such as IMO, CMI and shipping industry bodies; third, at the national level, by Australia, Canada and the United Kingdom; and fourth, at the regional level, by the European Union and regional arrangements for the North Sea and the Baltic Sea.
Any proposal for reform in the area of places of refuge must inevitably encounter and attempt to balance two firmly entrenched and largely incompatible positions. Shipping interests involved in the success of the marine adventure have a strong interest in preserving the vessel through timely intervention in a place of refuge. Coastal States have an equally strong interest in preserving their national waters and territory from pollution damage and their populations from danger from hazardous cargoes. To date, the task of trying to balance these varying interests, either through existing laws and institutions or through the solutions proposed by the IMO and CMI, has proved to be difficult. Additionally, there are a number of factors which could influence the way in which coastal States respond to requests for access. These include the age and condition of the world fleet; the failure of flag State control, port State control and classification societies to detect substandard shipping; and the failure of current international conventions to cover all aspects of possible damage to places of refuge.
The conclusion of the thesis is that there is, currently, no complete answer to the problem of places of refuge since the necessary balance of interests is absent in the current proposed solutions. This balance must be found and factors influencing the decision of coastal States to grant access must be addressed. The problem of places of refuge is likely to persist until this occurs.