Right of Entry for Ships in Distress

The issues that arise in this situation are related to the entry into port by ships in distress under the international maritime law. This essay will consider three questions that arise from this situation. First, whether there is a right to entry for ships in distress and whether the Port Authority could have refused entry into port to MV Paula. Second, what are the rights and liabilities arising in this specific scenario. Third, the impact if the Nairobi Wreck Removal Convention was not in force in the UK.

The first question that arises in this situation is whether the Port Authority could have refused entry into port to MV Paula under International Law. In general, ships do not have right of entry to port, exceptions have been drawn in situations where the ship is in distress. The right to entry for ships in distress is derived from customary law in case there is no treaty between the coastal state and the state to which the ship belongs. In other words, unless there is a treaty that allows such entry into the port, the customary law becomes applicable. The right of a ship in distress to seek refuge is considered to be a universally accepted humanitarian right in international law which is also recognised by International Convention for the Safety of Life at Sea 1974 (SOLAS) in the form of a duty on coastal states to render assistance to ships and persons in distress at sea. If seen in conjunction with the customary right to refuge for ships in distress, SOLAS indicates that there is a right to receive assistance for the ships in distress and that such right may also include the right to entry into port in specific conditions. The Guidelines on Places of Refuge for Ships in Need of Assistance (IMO Guidelines)

The Law of the Sea Convention (LOS) allows stopping and anchoring as part of passage rendered necessary by force majeure or distress or where assistance is offered to ships in distress (Article 18 (2)). Distress in the context of maritime law has been explained a danger to the ship, the cargo or the crew to the extent that a reasonable master of the ship is put in fear of losing the ship, cargo or the crew. For the purpose of danger, such danger can be due to different factors, including severe weather and heavy seas, lack of fuel, store and water. MV Paula was in distress and its condition posed risk to the lives and safety of the crew; while the major part of the crew was evacuated, Captain Cobah and ten seafarers remained on board even after two explosions in the hold. The need to alter the course of the ship arose from these circumstances.

The question is whether a ship in distress has a right under international maritime law to be given access to port by the Port Authority in this case. Under the customary law as well as the provisions of SOLAS and LOS, there is a right to receive assistance, which may include entry into place of refuge. In the IMO Guidelines, places of refuge are not necessarily ports, but are sufficiently sheltered areas where ships in need of assistance can stabilise and reduce the hazards to navigation, and to protect human life and environment. There does not appear to be an absolute right to enter the port of the coastal state even to ships in distress. For instance, coastal states have the right to refuse entry under the Intervention Convention 1969 by intervening on the high seas for preventing environmental pollution, and also refusing entry into its ports to ships posing environmental threat. Even the IMO Guidelines take this approach as instead of creating a clear right of entry, the Guidelines allow the coastal state to take decisions based on the need to balance the interest of the ship in need of assistance to seek a place of refuge and the prerogative of a coastal state to protect is coastline. However, the Territorial Sea Convention, Article 14 and LOS, Articles 18 and 52 are applicable here and will allow innocent passage to ship in distress in the event that there is not environmental or other hazard posed by the ship if it is allowed entry into port. Dig deeper into Modern Theories of International Trade with our selection of articles.

The second question pertains to the rights and liabilities of the relevant parties in respect of the incidents that occurred in the port. The nearest port was in the United Kingdom and MV Paula reached the port but foundered and sank in the vicinity of a breakwater. The owners ignored the order of the Port Authority to mark and remove the wreck. MV Invictus, which was leaving the port collided with the wreck of the MV Paula. Due to this, MV Invictus sustained severe damage resulting in its listing.

An important issue here relates to the loss sustained by MV Invictus and the liability of registered owner of MV Paula. In order to establish such liability under the international law, MV Invictus will have to prove negligence on the part of MV Paula, which led to collision. For this, three elements have to be established: (a) Breach of duty of care; (b) the breach contributed to the collision (causation in fact); and (c) breach caused the damage claimed (causation in Law). It has been held in The Dundee that where there is want of vigilance due to the security of other vessels navigating the sea that cause damage to other vessels, this gives rise to reparation in damages. In situations where the master of the ship does not take ordinary prudence into account, then negligence may be established. However, it is also important to establish causation in fact, which means that the collision happened because of the breach of duty. Moreover, the liability is also based on the establishment of the defendant’s fault as an effective or substantial cause of the claimant’s loss. The defendant may show that the proximate cause of the accident was some extended unavoidable event, which they could not possibly prevent even by the exercise of ordinary care, caution and maritime skill. In this case, however, the owners of MV Paula could have prevented the collision if they had removed the wreck instead of abandoning it. Therefore, the liability to pay damages to MV Invictus appears to be made out.

The Nairobi Wreck Removal Convention is also applicable to this issue as the owners of MV Paula would be liable to pay costs of marking and removal of the wreck as per this Convention. The Convention requires the affected state to mark the wreck as per the provisions in Article 8. Under Article 9, the registered owner of the wrecked ship is required to remove the wreck after being notified by the affected state to remove the wreck that is marked as a wreck and is thought to pose hazard. However, clause 7 of Article 9 also provides that if the registered owner fails to remove the wreck, then the Affected State may remove the wreck. Under Article 10, the liability of costs of marking and removing the wreck is that of the registered owner. The Convention also defines collision of ships resulting in material damage or imminent threat of material damage to a ship or its cargo as “Maritime casualty”. Therefore, the collision between the wreck of MV Paula and MV Invictus is a maritime casualty as per this definition. Furthermore, the wrecking of MV Paula itself is a maritime casualty. Therefore, this Convention is applicable here and as per this, the registered owners of the MV Paula are liable for their failure to remove the wreckage as per these provisions. However, liability may also arise for the affected state, which is the UK for its failure to remove the wreckage after it was abandoned. If the Nairobi Wreck Removal Convention was not in force in the UK, then the provisions relating to the marking and removal of wreck would not apply.

To conclude, while there is no absolute right of entry into port, international law does provide duties to coastal states to provide refuge to ships in distress, which would be applicable here. With regard to the damage to MV Invictus, the registered owner of MV Paula can be made liable under principles of negligence. At the same time, the owners would also be liable for the costs of marking and removal of wreckage of MV Paula as per the Nairobi Wreck Removal Convention.

Books

Chircop M, ‘Customary law of refuge for ships in distress’ in Aldo E. Chircop and O. Lindén (eds), Places of Refuge for Ships Emerging Environmental Concerns of a Maritime Custom (Brill 2006).

Morrison A, Places of refuge for ships in danger (Brill 2012).