Is the U.S. Navy Liable When Offering Assistance?

By Charlie Papavizas

Can military forces responding to piracy be liable for the loss of innocent life? The U.S. Court of Appeals for the Fourth Circuit addressed this question on January 23, 2015.

The case arose out of the hijacking by Somali-based pirates of a Taiwanese fishing vessel in 2010. The pirates kept three hostages on board the vessel, including the Master of the vessel, and then used it as a “mothership” to launch attacks on commercial shipping.

Once located, the mothership was attacked by the USS Stephen W Groves on May 10, 2011. After the surrender of the pirates, it was found that the Master had been killed. Subsequently, the Groves sank the fishing vessel. The Master’s widow sued the United States, seeking damages for her husband’s death and the loss of the fishing vessel.

The case was dismissed in the federal district court on the basis that the suit presented a “nonjusticiable political question,” and that, even if it had proceeded, the plaintiff would not have succeeded because of sovereign immunity. The Fourth Circuit affirmed the dismissal, leaving little room for potential government liability in piracy response situations.

The Fourth Circuit reasoned that “this case presents a textbook example of a situation in which courts should not interfere,” that judges are not equipped to second-guess “small-bore tactical decisions,” and that the case involved the discretionary use of force, which was not judicially reviewable.

The Fourth Circuit also rejected the plaintiff’s argument that the attack was more in the nature of a police action rather than an act of war and that it should be judged on the basis of an excessive force standard that arguably applies to such actions.  

This entry has been created for information and planning purposes. It is not intended to be, nor should it be substituted for, legal advice, which turns on specific facts.

By MarEx

Asian spot liquefied natural gas prices remained at a discount to European prices, with limited fresh business being done in the world’s top consuming region, traders said on Friday.

The price of spot LNG for April delivery held steady at $6.70 per million British thermal units (mmBtu) on Friday in line with the previous week, while Europe’s benchmark UK gas hub prices maintained a premium.

“There remains a small premium into Europe, we see increasing interest to at least leave whatever is produced in the Atlantic Basin, in the Atlantic Basin,” said a trader.

Atlantic Basin producers include Trinidad and Tobago, Nigeria and Algeria.

The premium has already triggered a surge of LNG cargoes from the world’s biggest exporter Qatar, equidistant between Europe and Asia, with seven new LNG tankers embarked for Belgian, British and Dutch ports this week alone.

Europe is attracting twice as many LNG tankers as last year and more are expected.

Prior to this month, European gas had not traded at a premium since the Fukushima nuclear crisis caused a spike in Asian demand in 2011.

Traders said that Lunar New Year holidays also limited activity in Asia this week.

One brighter spot was Brazil, although volumes needed were not expected to be significant.

“Brazil has some demand, but we’re talking maybe a few extra cargoes,” said a ship broker.

“They’re spoilt for choice,” the broker added, referring to ample supply available on the spot market.

“It looks like Europe is the only market with some depth where it’s possible to place some (volumes of) cargoes.”

More details on the results of Egypt’s recent tender were announced this week, with trading house Vitol to supply nine LNG cargoes for two years starting June 2015, while talks with BP for a further 21 LNG cargoes are close to being finalized.

Copyright Reuters 2015.

By MarEx

Prime Minister Alexis Tsipras said on Thursday that he believed Greece could be a significant commercial gateway for China into Europe.

Speaking on board a Chinese warship visiting the Greek port of Piraeus, Tsipras welcomed China’s existing investments in his country.

China’s COSCO manages part of Piraeus docks, but the government of Tsipras, a radical left-winger, has halted privatization of the port which had been agreed with the country’s EU/IMF creditors.

“We give special importance to the existing Chinese investments in Greece including the important activities of COSCO at Piraeus Port,” he said while visiting the warship.

The government halted the sale of its two biggest ports, Piraeus and Thessaloniki.

Under a privatization scheme last year, COSCO had been shortlisted, along with four other suitors, as a potential buyer of a stake of 67 percent in the Piraeus port.

Copyright Reuters 2015.

By MarEx

China’s creation of artificial islands in the South China Sea is happening so fast that Beijing will be able to extend the range of its navy, air force, coastguard and fishing fleets before long, much to the alarm of rival claimants to the contested waters.

Reclamation work is well advanced on six reefs in the Spratly archipelago, according to recently published satellite photographs and Philippine officials. In addition, Manila said this month that Chinese dredgers had started reclaiming a seventh.

While the new islands won’t overturn U.S. military superiority in the region, Chinese workers are building ports and fuel storage depots as well as possibly two airstrips that experts said would allow Beijing to project power deep into the maritime heart of Southeast Asia.

“These reclamations are bigger and more ambitious than we all thought,” said one Western diplomat. “On many different levels it’s going to be exceptionally difficult to counter China in the South China Sea as this develops.”

China claims most of the potentially energy rich South China Sea, through which $5 trillion in ship-borne trade passes every year. The Philippines, Vietnam, Malaysia, Brunei and Taiwan also have overlapping claims.

All but Brunei have fortified bases in the Spratlys, which lie roughly 1,300 km (810 miles) from the Chinese mainland but much closer to the Southeast Asian claimants.

Beijing has rejected diplomatic protests by Manila and Hanoi and criticism from Washington over the reclamation, saying the work falls “within the scope of China’s sovereignty”.

The Philippines began expressing growing concern in mid-2014, in particular, accusing Beijing of building an airstrip on Johnson South Reef.

Satellite analysis published by IHS Jane’s Defence Weekly this week showed a new installation being built on Hughes Reef. It described a “large facility” having been constructed on 75,000 square meters of sand reclaimed since August.

It also published images of Fiery Cross Reef, which now includes a reclaimed island more than 3 km (1.8 miles) long that experts said would likely become a runway.

Work is also well established on Gaven, Cuarteron and Eldad Reefs, with the new dredging taking place on Mischief Reef.

BOON FOR FISHERMEN

While the prospect of China using the artificial islands to refuel warplanes in any conflict was a possibility, some experts highlighted significant non-military benefits.

China could keep its fishing fleets and coastguard working in Southeast Asia more effectively, with crews able to re-supply and rest, said Carl Thayer, a South China Sea expert at Canberra’s Australian Defence Force Academy. Oil explorers would similarly benefit.

Reuters reported in July that Chinese authorities were encouraging fishermen to sail to the Spratlys, often providing fuel subsidies to help.

Before the reclamation, China’s facilities were limited to squat buildings and radar domes built on rocky outcrops, with limited berthing and storage facilities, a contrast to natural islands occupied by Taiwan and the Philippines.

“Even before you factor in military questions, the expansion of Chinese fishing and coastguard fleets is going to be a strategic shift that is going to be very hard for anyone to counter,” said Thayer.

“And then you will have the navy just over the horizon.”

Thayer noted that while no legal claim could be extended from an artificial island, China would effectively move to force rival countries from the surrounding seas.

Chinese strategic analysts said the build-up was being driven by what Beijing sees as security threats, especially the need to check Vietnam, which has had up until now the most holdings in the Spratlys, with 25 bases on shoals and reefs. Vietnam is also quietly building up its submarine fleet to counter China.

The two Communist Party-ruled neighbors clashed at sea in 1988 when China took its first Spratly holdings, including Fiery Cross Reef, from Vietnam.

Some regional military attaches believe China may eventually use helicopter facilities on the new islands to run anti-submarine operations.

“This is less about politics and legal issues and more about security, from China’s perspective,” said Zhang Baohui, a mainland defence specialist at Hong Kong’s Lingnan University.

STRATEGIC GAP

Gary Li, an independent security analyst in Beijing, said he believed any military pay-off would be relatively small from the new islands, given their distance from the Chinese mainland.

“I suspect these reclamations would only ever have localized tactical uses in military terms,” Li said.

China’s lack of offshore military bases and friendly ports to call on was apparent last year when Chinese naval supply vessels sailed to Australia to replenish warships helping look for a missing Malaysian airliner in the Indian Ocean.

Naval planners know they will have to fill this strategic gap to meet Beijing’s desire for a fully operational blue-water navy by 2050.

More immediately, some analysts said they believed the islands would give China the reach to create and police an air defense identification zone (ADIZ) above the South China Sea.

China sparked condemnation from Japan and the United States when it imposed an ADIZ, where aircraft are supposed to identify themselves to Chinese authorities, above the East China Sea in late 2013. China has denied speculation it would follow suit in the South China Sea.

Roilo Golez, a former Philippine national security adviser, predicted China would complete its reclamation work by early next year and announce an ADIZ within three years.

“They are connecting the dots. They’re putting real muscle into this,” Golez said.

Copyright Reuters 2015.

By Wendy Laursen

There has been a further release of diesel oil from the DFDS Group vessel, Lysblink Seaways, which remains aground at Kilchoan off the Scottish Coast.

Following discussions between the Secretary of State’s representative (SOSREP) Hugh Shaw and U.K. Maritime and Coastguard Agency’s counter-pollution team, an absorbent boom has been put in to cope with the oil leak from the starboard side of the vessel. The agency has not provided an estimate of the volume of the leak.

A team from Svitzer Salvage is currently on board the vessel conducting a detailed damage assessment. 

Weather conditions have moderated slightly making it easier to use equipment. Briggs Marine vessels Forth Jouster and Kingdom of Fife are on scene and are supporting the salvage operation.

Lysblink Seaways was on its way from Belfast to Norway when it ran aground in the early hours of Wednesday February 18 at Kilchoan on the remote peninsula of Ardnamurchan.

Tobermory RNLI’s volunteer crew launched the Severn class lifeboat, Elizabeth Fairlie Ramsey, shortly after 3am to go to the aid of the vessel which was hard aground on rocks close to the ferry slipway. The salvage operation remains ongoing and Tobermory RNLI’s volunteer crew remains on standby. Image credit: Jon Haylett/Kilchoan Diary

By Wendy Laursen

Lai Sai-ming, master of the ferry Sea Smooth, has been sentenced to eight years’ prison after an October 2012 collision that resulted in the death of 39 people including eight children.

The Hong Kong court found Lai, 56, guilty of 39 counts of manslaughter and one count of endangering the lives of others at sea.

Chow Chi-wai, 58 and master of the pleasure boat Lamma IV, which collided with Sea Smooth, was acquitted of manslaughter charges but sentenced to nine months prison for endangering the lives of others at sea.

Hong Kong was in the midst of celebrating China’s National Day at the time of the accident, resulting in the area’s already bustling waters being unusually overcrowded.

Lamma IV, owned by The Hong Kong Electric Company, was carrying company employees and their families to watch a fireworks display when it was struck by the passenger ferry traveling from Hong Kong Island to Lamma Island. 

The collision occurred off Lamma’s coast around 8:20 p.m. and resulted in more than 100 people being flung into the water. Lamma IV began to sink almost immediately after the impact, and low visibility and obstacles on board made work difficult for rescuers.

The Hong Kong Standard reports that prosecutor Andrew Bruce previously told the court how Chow turned his vessel “too little, too late” as Sea Smooth was not only traveling at twice its speed, but also made “a monumental mistake” of turning to port in a crossing situation.

Lai’s barrister Audrey Campbell-Moffat told the court: “You have here a man who’s never been to school, who’s been at sea all his life and has never had any accidents. I don’t seek to undermine that the lack of proper lookout was the cause of the collision but, looking at the culpability of the act, it’s at the bottom of the range.”

In letters to the court, a passenger onboard Lamma IV, surnamed Lee, described seeing Chow doing his best to maintaining order and comforting passengers after the collision.

Both Chow and Lai have reportedly been diagnosed with post-traumatic stress disorder.

The accident was the deadliest maritime accident in Hong Kong since 1971, when a Hong Kong-Macau ferry sank during a typhoon, leaving 88 people dead.

By MarEx

By Simon O. Williams, BA, LLM

Despite global regulation grounded in the international Law of the Sea (specifically, UNCLOS) and a myriad of coastal, port and flag state policies, major institutional gaps remain in the regulation of private maritime security. From a governance perspective, many argue that there is a dire need for new approaches and instruments to enhance regulation, increase harmonization of rules, set standards and ensure compliance. Experts cite that the best way to catalyze such change is by developing a soft-law framework.

What Is Soft Law?

Voluntary certification schemes and codes of conduct, known as soft law, are non-legally binding instruments; often used when there is uncertainty or ineffective hard law. Parties to soft law may behave in ways they negotiate and voluntarily agree to. In this case, their actions reflect the industry attempting to preempt government or international regulation to make standardization less painful and set trends in order to shape the future hard legal requirements in their sector.

Soft-law market responses to the maritime security industry boom, such as the emergence of industry-led regulations, codes of conduct and certification schemes, add order, oversight and accountability to this industry, closing the governance gaps left open in hard-law frameworks. Their introduction stems from a widespread commercial perspective that it is better to create industry controls, even self-imposed ones, now than to launch new government regulations later that will bring the industry to a screeching halt.

To close regulatory gaps and to develop some level of oversight and legitimacy, multiple voluntary industry-wide codes of conduct, certification schemes and guidelines have cropped up. Actions have been taken through consortiums of public and private partners interested in setting standards and improving best practices in this often considered unwieldy industry. The maritime security industry has proactively created such standards and best management practices for itself, preempting government involvement. These soft-law standards have even helped shape government and international regulatory policies toward the use of privately contracted armed security personnel (PCASP).

Advantages of Soft Law

What are the advantages of soft-law? It is low-cost, involves fewer meetings, fewer procedures, less bureaucracy, and is an excellent way to provide guidelines, develop interests and build momentum to evaluate program effectiveness before rolling out a hard-law package. The disadvantage of soft law is that it does not require compliance by states or parties who do not want to change, which ironically are often the targets of the instrument.

Even if the industry has historically not been a major supporter of armed guards, all elements that reluctantly accepted the role of PCASP sought a code of practice for the use of force and a clear oversight structure for the provision of security. The industry has established “self-regulating” doctrines beyond the limited hard-law frameworks. 

This means that corporate management sets or adopts international industry standards for their organization to follow. Historically, if the private military contractor industry in Afghanistan and Iraq is any guide, there is a ’race to the bottom’ as providers respond to competitive pricing in an unregulated environment. But industry standards have emerged to provide a minimum threshold for quality services.

The reporting of incidents that are resolved without damage to the ship or injury to the crew is also effectively disincentivized since the reporting company may open themselves to lengthy investigation and review of certification and training. To further complicate matters, confidentiality agreements banning incidents from being reported to outside agencies are sometimes incorporated as a part of the maritime security company’s contract with the shipping company.

IMO Circulars

“Universal and uniform” is the spirit of International Maritime Organization (IMO) regulation because vessels travel through all maritime zones under the jurisdiction of multiple countries, have crew from various countries, and therefore need to be held to relatively uniform standards.

The IMO is the United Nations agency for maritime affairs. It seeks to develop coordination and policy guidance among different policy areas and various uses of the sea. Among other issues ranging from vessel source pollution to arctic shipping safety, the Maritime Safety Committee (MSC) of the IMO drafts resolutions and recommended guidelines for the employment of armed guards aboard ships.

The IMO is considered the setter of Generally Accepted International Rules and Standards (GAIRS). Even if a state is not a party to specific IMO conventions, but a member of the IMO, then the UNCLOS policy of enforcing GAIRS applies because GAIRS come from not only treaties and laws, but also resolutions of the IMO, which has near universal membership and as such are often considered customary international law. According to a 2012 statement from the office of the EU High Representative for Foreign Affairs, Catherine Ashton: “the legal basis of arming cargo vessels needed to be looked into”…. Her spokeswoman added that the EU “would like the use of armed guards regulated within IMO.”

While IMO has not, at the time of writing, issued any binding treaty or convention regarding the use of armed guards aboard merchant ships, the Organization has released certain guideline documents in the form of IMO Circulars, which can be considered soft law (or even customary international law) advising flag states (MSC.1/Circ.1406), port and coastal states (MSC.1/Circ.1408), shipowners, shipmasters, and ship operators (MSC.1/Circ.1405), and even private maritime security companies (MSC.1/Circ.1443) on best practices and reaffirming their oversight responsibilities in international law.

The IMO, however, has stated that its guidelines do not address Rules of Engagement (RoE) for vessel protection details (VPDs) as this is a military concept outside the organization’s authority.

The organization also makes specific reference to the International Code of Conduct for Private Security Providers and the Montreux Document as reference points for PCASP guidance. Although neither of these texts focus explicitly on PCASP activity in the maritime domain as they were designed with terrestrial operations in mind, they act as a solid affirmation that the principles of good conduct, compliance and accountability should apply to the maritime domain as well, and especially the rule of law and human rights law.

The MSC of the IMO has urged port and coastal states to clarify their laws regarding embarkation, disembarkation and carriage of PCASP, their weapons, ammunition and other security-related equipment along with flag states to decide whether or not they will allow PCASP aboard their vessels, and if so under what conditions.

In addition, the IMO has released the syllabus for a model course for maritime security officers. Although this is not a piece of legislation, it is noteworthy as it has had a positive effect on the industry. PCASP are completing this instruction from maritime training providers offering it as qualifying standard, often in conjunction with Flag State approval, thereby increasing PCASP benchmark competency and uniform training to respond to attacks against commercial vessels. Although this training is not compulsory by law, ship-owners, insurers, and PMSCs actively seek personnel who have completed this training and/or other standards.

The IMO guidance makes also some tactical recommendations. It approves the use of passive and non-lethal defensive measures, supporting implementation of dual-use products inter alia; water hoses, nets, long range acoustic devices, razor and electric wire in the fight against piracy. On use of firearms, IMO is not as supportive, indicating hazards of firearms discharge including dangers of flammable cargo and conflict of port state rules banning their use.

ICoC

Perhaps the soft-law agreement with the widest membership, The International Code of Conduct (ICoC) for private security service providers, has been signed by 708 security companies,  states, and other groups, identifying a set of principles and process for security providers to support rule of law and human rights.

Parties, however, incur no binding legal obligations and simply acknowledge that the principles of the Code of Conduct should be reflected in their operations. Although an accountability and oversight measure is being discussed for the ICoC, it may be difficult to enforce the provisions of the Code in a complex maritime environment, as opposed to on land, where jurisdiction and political boundaries are more straight forward.

ICoC seeks to populate the absence of universal, uniform standards for performance protocols and requirements of security contractors, thus enhancing the likelihood that PCASP will respond uniformly to attacks, in this case attempts of piracy and armed robbery against their clients’ vessels.

This code of conduct, like most others, is not legally binding. It simply indicates that there are international best practice standards to govern behavior, especially in this sector, and seeks to codify them into a document for providers and procurers of security services to voluntarily pledge adherence to.

Montreux Document

The Montreux Document on Pertinent International Legal Obligations and Good Practices for States related to Operations of Private Military and Security Companies during Armed Conflict grew out of international concern over the ungoverned, or at least unwieldy, activities of PCASP supporting land operations, mostly for the U.S. government in Iraq.

The Montreux Document highlights seventy-three guidelines, reaffirming international law, specifically international human rights law and international humanitarian law. It is signed by fifty states plus the EU, OSCE, and NATO. It encourages states and organizations to enact legislation requiring the vetting of private security companies and to impose penalties including criminal prosecution for violations of law.

Although also non-binding, the Montreux Document can be considered a code of practice, signed by states and organizations, alike, to abide by already existing international law, highlighted in the document, pledging to ensure that their operations do not take place in a legal vacuum, devoid from accountability, no matter far away from home they may be. This certainly can be, and has been, applied to the maritime context as well. Moreover, just as the nationality principle applies to vessels anywhere they are in the world via flag state jurisdiction, the Montreux Document introduces other applications for the nationality principle in the private security context. It titles three new groups of states. “Contracting States” which are states that directly hire private security services. “Territorial States” being states on whose territory private security activities take place, which can arguably include maritime territories and ports. And “Home States,” which are the states of nationality of the private security company or individual PCASP. As a result of these distinctions, further concurrent, or overlapping jurisdiction can apply to the individuals and firms in question, beyond simply the flag, coastal, and port state trifecta presented in the UNCLOS framework.

ISO/PAS 28007

While the Montreux Document and the ICoC are great stepping stones to guide the industry and advise on the best practices to be taken by crew and PCASP, they do not provide a benchmark standard for compliance activities in the maritime context. 

Industry leaders and organizations sought to develop a superior standard for private maritime security companies to meet and be held accountable to. After much deliberation in the main maritime security forums of the IMO’s MSC, BIMCO, the Security Association for the Maritime Industry (SAMI) and the Security in Complex Environments Group (SCEG), it was decided that the International Organization for Standardization (ISO) would release a pilot certification program, titled ISO/PAS 28007, as the standard. 

ISO/PAS 28007 has emerged as the gold standard of compliance and best practices for private maritime security companies to follow and be certified to, indicating they are working at the highest possible standard. The ISO, which standardizes many quality assurance systems, especially in the maritime sector, volunteered to design and produce the standard. It is hoped that ISO/PAS 28007 will be considered by major Flag States as a foundation to incorporate into their oversight regulations and standards for PMSCs operating on their flagged vessels. The standard has developed in two parts, as described below.

1.    ISO PAS 28007: Part 1 – Guidelines for Private Maritime security Companies (PMSC) providing privately contracted armed security personnel (PCASP) on board ships (and pro forma contract)

Part 1 is a list of best practice recommendations, to which private maritime security companies should strive to follow, and subsequently achieve ISO certification to, attesting to their industry leadership, legal compliance, and good conduct. Being certified to this standard provides a clear frame reference to ship-owners and other possible clients, that the certified PMSC in question can be relied on and trusted to conduct operations in line with the highest industry standards and recommended best practices.

According to the managing director of an industry leading PMSC, it is “inevitable […] that there will be significant variances in the quality, integrity and professionalism of the services being offered. Services can range […] from a highly professional, vetted, regulated and trained company, to an opportunistic start-up that chooses not to comply with any existing standard and offers low cost maritime security to hard-pressed ship-owners. ISO 280007 represents real progress and potential.”

ISO/PAS 28007 sets a standard for private maritime security operations, and creates a common understanding amongst service providers, procurers, and all state authorities of the role PCASP play in maritime security. The certification to ISO/PAS 28007 is the only accepted international certification scheme that can allow any interested party to quickly and confidently ascertain the legitimacy, competence, and compliance of a PMSC.

2.    Part 2 – Guidelines for Private Maritime security Companies (PMSC) providing privately contracted armed security personnel (PCASP) on board ships- International Model Set of Maritime Rules for the Use of Force (RUF)- AKA- ‘The 100 Series Rules’

On top of the issues of oversight and accountability, PCASP lack any standardized policy for the use of force. Military service personnel follow strict Rules of Engagement (RoE); command directives on circumstances under which forces will enter into and continue combat against opposing forces.  In the military context, these are generally consistent with international law and state practice, proportionate to the opposing forces and their use of force. In the private sector, specifically private maritime security industry, military guidelines are not applicable to civilian personnel, and the international laws governing threat response, such as the Geneva Conventions, do not apply.

As a result, an industry effort emerged to clarify rules for self-defense at sea by private parties, shipowners, crews, ship masters, and PCASP, where a standardized, legal use of force policy did not earlier exist. To provide such order, an optional industry-wide guideline emerged, which if followed, can mitigate the possibility that lethal force is used inappropriately and disproportionately. This guideline, dubbed the “100 Series Rules” has been developed as a civilian Rules for the Use of Force (RUF) version of military Rules of Engagement (RoE) to be appended to the ISO/PAS 28007 guidelines. 

The 100 Series Rules provide an international model set of RUF to which PCASP can be professionally trained to follow and their actions measured and evaluated by competent authorities in the event of a use of force incident. According to the chief author of the 100 Series Rules, “The point of this document is not one of imposition upon entities, but one of choice against which one can make an informed decision when reviewing and comparing RUF. At its core is the basic principle of the individual right of self-defence; itself a universal concept.”

Together, Parts 1 and 2 of ISO/PAS 28007 along with other soft-law frameworks reaffirm international law and obligations, painting a holistic best practice standard to which the private maritime security industry can be held to, balancing operational necessities with legal compliance. – MarEx 

Simon O. Williams, BA, LLM is Director of Tactique Ltd, a Washington DC-based consultancy on maritime security and environmental affairs. This is the sixth and final article in a series on maritime security operations and the Law of the Sea for MarEx.

(This article is a summary of maritime security developments. It is provided for general information purposes only, is not legal advice and does not constitute the offering of legal consultation services. It should not be used as a primary legal resource.The opinions expressed herein are those of the author and not necessarily those of The Maritime Executive.)

The opinions expressed herein are the author’s and not necessarily those of The Maritime Executive.

By MarEx

Italy’s coast guard went to the rescue of at least 1,000 migrants in difficulty in the sea between Europe and North Africa on Sunday, the third operation of its kind in as many days.

The coast guard said it had plucked more than 130 people from two rubber boats about 180 km (110 miles) south of the island of Lampedusa so far, and was working to save eight more vessels.

“We are certainly at more than 1,000 migrants” involved in Sunday’s rescue operation, a spokesman for the coast guard in Rome told Reuters.

Better weather since last week has encouraged migrants to make the perilous journey from North Africa, where a breakdown of order in Libya has made it almost impossible to police the traffickers who pack people onto rickety boats.

More than 300 people died last week trying to make the crossing, which claimed 3,500 lives last year even before Italy closed its Mare Nostrum search and rescue mission in December.

The coast guard ship Fiorillo and several cutters were sent to the latest rescue, along with four merchant ships and two tug boats which were diverted to join the operation. One navy ship, two police patrol ships and a Maltese vessel had also been mobilised, the coast guard spokesman said. 

Two merchant ships and an Italian coast guard vessel went to the rescue of more than 600 migrants on Saturday who sent emergency calls for help from their packed rubber boats near the Libyan coast.

The rescue operation closely follows the deaths last week of more than 300 people who were trying to make the crossing to Europe.

The Italian coast guard in Rome said the rescue vessels had located six boats drifting about 50 miles from the coast of Libya, after receiving calls for help by satellite telephone.

The coast guard ship Peluso has started the rescue operation, a spokesman for the coast guard said, a day after about 700 other migrants were plucked from overcrowded boats.

Last week’s deaths reignited criticism of Italy’s decision to close its full-scale search and rescue mission last year. The Mare Nostrum operation was replaced with an EU border control operation called Triton, which has fewer ships and covers a smaller area. Copyright Reuters 2015.

By Wendy Laursen

The Taiwanese master of the bulk carrier China Steel Developer has been arrested in Australia.

Surnamed Lu, the master has been detained on charges of sailing through the Great Barrier Reef Marine Park without a pilot. 

This offence carries a maximum fine of A$85,000 ($66,000).

It is alleged that the vessel sailed through Hydrographers Passage near Mackay on New Year’s Day without a pilot, as required by Australian law.

ABC News reports that the ship is believed to have carried a cargo of coal to China before returning to Australia last week.

Lu was arrested on Saturday and will appear in Newcastle Court on Monday.

In 2010, a Chinese bulk coal carrier, the Shen Neng 1, ran aground in the Great Barrier Reef after veering outside a shipping lane. The grounding caused a heavy fuel oil leak that spanned four kilometers and carved a scar into Douglas Shoal.

The scar is roughly three kilometers (1.9 miles) long and 250m (820ft) wide. The anti-fouling coating from the vessel’s hull is hindering regrowth of coral at the site, and it is expected to be 10 to 20 years before the reef returns to the state it was in before the incident.

In that incident, the first mate was jailed for three months and the master was fined A$25,000 ($19,000). Around 4,500 ships pass through the Great Barrier Reef each year. Picture source: Australian Reef Pilots.

By Wendy Laursen

A speech last week by Christopher Koch, President and CEO of the World Shipping Council (WSC), resurrected a debate about the IMO Ballast Water Management Convention that many thought, and hoped, had been settled: Should flag states proceed towards ratification or not?

Speaking at an industry conference, Koch said that governments yet to ratify the convention should “pause” before doing so. “There appears to be agreement that the IMO type approval guidelines have shortcomings that must be addressed. How and when those shortcomings will be addressed is not certain. Failure to address these shortcomings before the IMO convention is ratified or before U.S. type approved technology is available would place vessel owners in an untenable situation where they would be obliged to procure and install technology that may not reliably meet the convention requirements and that may not be acceptable in the U.S.

“These shortcomings should be causing thoughtful governments that have not yet ratified the convention to pause before ratifying because what nation wants to be the one that causes the convention to come into force before these fundamental issues have been resolved? What nation wants to trigger a requirement on the industry to invest tens of billions of dollars in treatment technology if that investment does not offer the vessels certainty that they can trade anywhere in global commerce with regulatory confidence?”

Once the convention enters into force, there will be a requirement to install technology over a challenging time frame that will test vessel operators, vendors and shipyards and could affect the cost of the equipment, especially if the number of vendors with U.S. type approved systems is limited, he says.

U.S. vs. IMO

The U.S. has established more rigorous type approval requirements than the current IMO convention G8 Guidelines for technology type approval, and U.S. regulations will not recognize IMO type approved treatment systems.

The availability of U.S. type approved systems would give vessel operators the ability to install that technology, instead of technology that has only been type approved under the IMO regime, says Koch, to obtain greater confidence that their investment will meet the convention’s requirements, as well as U.S. requirements, wherever the ship may operate.

“Once there is U.S. Coast Guard type approved technology, nations that have not yet ratified the convention would know that their ratification would not require vessels to make uncertain investments – because, even if the IMO does not remedy the problems that exist today with the current IMO type approval guidelines, a vessel would at least have the option of purchasing and installing technology that had been approved under the more rigorous U.S. type approval standards. That would provide more confidence in the capital investment decisions that shipowners will need to make than the promise of the IMO to address the problem in the future,” he says.

“Chris Koch is absolutely right,” says Arthur Bowring, Managing Director of the Hong Kong Shipowners Association. “We still don’t have any U.S. Coast Guard approved systems, nor do we have the revised IMO G8 testing guidelines. What we do have is an IMO working group that is looking at industry’s concerns, and other concerns that have since been raised, over the G8 guidelines, but we don’t yet have a firm commitment to grandfather older fitted systems if the G8 guidelines are revised.  So, owners fitting systems now could well have to replace them to meet the U.S. Coast Guard approval standards or to meet the revised G8 guidelines if the grandfathering clause is not accepted.

“That being said, by IMO setting up the working group, we would feel that governments understand that they have a moral obligation to properly address industry concerns and put the correct procedures in place, at least for the IMO standards,” says Bowring.

Jad Mouawad, a specialist consultant in ballast water treatment systems at Mouawad Consulting, says Koch’s remarks indicate that WSC is calling for exactly the opposite of what was promised and committed to at MEPC 67 in 2014. The WSC, together with a large number of industry representatives, assured the IMO that their request for revisions of the G8 Guidelines had nothing to do with their wish to postpone the implementation of the convention, but rather to increase the robustness of the type approval regime, says Mouawad.

That MEPC meeting agreed to open Guidelines G8 for type approval on the condition that such a move will not affect the rate of ratification of the convention by member states. 

Koch’s remarks are disappointing, says Mouawad. “This is surely not in line with their sister organizations like the ICS and BIMCO who actually kept what they committed to at MEPC 67 and went out and supported continued ratification of the convention since MEPC committed to review the G8 Guidelines.

“For the sake of clarity, the fact that MEPC decided to review the G8 Guidelines has nothing to do with the robustness of the current guidelines. It is merely an implementation of the experiences from the application of the current guidelines for a seven years period. Such revisions will come every 5-10 years, which is typical for any type approval guidelines.”

However, the IMO ballast water treatment system type approval is not like other equipment type approvals, and not like those for U.S. type approval, says Howard Fireman, Senior Vice President, Asset Performance Management, at ABS. A key issue is that ships are going to be held accountable for the operational performance of the equipment. For other shipboard type approved equipment (such as oily water separators or sewage plants), type approval means that the vessel is in compliance. 

“The U.S. type approval testing is prescriptive. The U.S. Code of Federal Regulations (CFR) for U.S. regulations and the ETV protocol specifically describe how tests are required to be conducted. For the Ballast Water Management Convention, IMO has only developed guidelines which are open to how each flag administration wants type approval to proceed,” he says.

Most systems with IMO convention type approval have applied for U.S. Coast Guard Alternate Management System (AMS) acceptance. “Note the difference in terms,” says Fireman. “AMS are not “approved” but “accepted”. For U. S. Coast Guard type approval, testing is underway, but some aspects of the testing can only occur between March and August due to the need for sufficient organisms in the water for testing. The process could take between 18 months and two years for a system and is confidential. Wärtsilä is the only vendor that announced that their land-based testing was completed by December 2014 for the Aquarius EC ballast water management system.”

Waiting for Godot

So, says Fireman, the market is very much on hold until U.S. Coast Guard type approval is awarded. “The choice to purchase a U.S. Coast Guard accepted AMS is a business decision. For some shipowners wanting to get experience with a system, purchasing an AMS may be a good decision, because prices are low. The system would need to be carefully evaluated, because some systems may be more easily modified for U.S. Coast Guard compliance,” he says. “To reiterate, purchasing a system at this time is a business decision with many factors to consider.”

In Koch’s view: “This has been – and continues to be – an unreasonable and troubling dilemma facing the industry.” – MarEx

The opinions expressed herein are the author’s and not necessarily those of The Maritime Executive.