Right of Entry for Distressed Vessels

Introduction

In 1982 in Jamaica, members of the United Nations assembled to discuss matters of maritime organization and the aftermath of this meeting was the United Nations Convention on the Law of the Sea (UNCLOS) that finally came into force twelve years later in 1994. The preamble of the convention above is very clear on the intention of the convention and its scope. In its part, the preamble states thus; “That prompted by the urge to have matters of the sea to be settled amicably and believing that once codified, the convention will contribute a great deal towards strengthening cooperation, security, peace and friendly co-existence among members…..”. Key in the introductory part of the convention is the fact that all other issues or matters not under the purview of the Convention on the Law of the Sea are to be administered under the rules, regulations and principles of the general international law of the sea. For purposes of this question, the idea of the right of entry is key especially for vessels in distress.

Advise the Port Authority as to whether or not they could have refused – under International Law – to allow the MV Paula to enter the port.

MV Paula was indeed a ship in distress and accordingly, the right of entry is a reserved right for vessels in similar situations. The UN convention on the Law of the Sea recognises the right of entry of ships in distress. That any ship in situations caused by distress or superior conditions enjoys the right of entry into the waters of the nearest Coastal state. Such a passage into the waters of a nearby coastal state must be that which the convention describes as innocent passage. This is a passage with good intention and it must be lawful in all aspects. The idea of coming up with right of entry under both the customary and the UN convention was to ensure safety of the ship or vessel and the crew on board. The basis of the right of entry is that something or some lives must be in danger and it would be practically impossible to carry on with the voyage as doing so would risk the lives of the crew and the condition of the vessel.

On this very basis of the right of entry of vessels in distress to the waters of nearby coastal states, MV Paula was indeed disabled and as such was a vessel in distress and being that the nearest port was in the United Kingdom, herein the Coastal state, the Port authority could not refuse MV Paula the right of entry especially when such an entry was innocent like the case in point. United Kingdom is a signatory of the UN Convention on the Law of the Sea and as such, the provisions of the convention to which the right of entry is a part of applies to it. However, the right of entry is not absolute and the Coastal states have the power to refuse entry on a number of grounds like if the passage is not innocent.

The Port Authority could exercise their jurisdiction to deny entry of MV Paula into their port since this is also a discretion that is conferred upon Coastal states by the convention. However, this discretion should not be misused by the Coastal states. Vessels in distress which are in actual sense disabled and have innocent passage are expressly excluded from this jurisdiction to deny entry. The point is that Coastal states might have sufficient reasons to deny entry and this is their right of self-defense especially if the reason for denial of entry are to keep dangerous vessels away from their ports. The overriding reason for this right of self-defense is the sovereign duty of Coastal states to protect the lives of their citizens and their environment from harmful substances. On this basis again, it would not be right to deny MV Paula right of entry since already the vessel was in distress. A disabled vessel is excluded from the discretion to deny entry. As such, the port authority could not deny MV Paula entry into their port.

There is glaring tension in some instances where the Coastal states have denied entry of vessels in distress and having innocent passage. This tension is between the rights of entry of innocent vessels vis-à-vis the rights of the coastal states which in most cases do deny entry for vessels in distress. For example, in 1999, Erika, travelling from Netherlands to Italy carrying oil, experienced some problems and the captain decided to send distress call to France requesting to use their nearby port. This did not happen and the end result was that Erika finally sank. One year later in 2000, Castor was denied right of entry after experiencing mechanical problems by Morocco, France and other nations. This development informed the International Maritime Organization’s decision to have some areas pre-designated as refuge points in case of distress. This, however, is still work in progress and as such the United Nations Convention on the Law of the Sea and the Customary International continue to apply. Under these laws, the right of entry is inherent in matters of the sea and any ship or vessel in distress should be denied the right of entry.

As such, the right of entry of vessels in distress remains at the core of the UN Convention and this right allows any vessel in situations of distress or those caused by superior powers or force majeure to enter into the territorial waters of a coastal state provided that the entry is innocent and the conditions are extreme to allow it continue to its intended destination. Once all the conditions are satisfied that the subject vessel is experiencing unavoidable conditions to enable it continue with the voyage, then the coastal states have no exclusive right to deny entry. Their discretion to deny entry can be fettered if all the conditions are met. For all intents and purposes, MV Paula was a vessel in distress and the situation was caused by extreme conditions and as such and in the spirit of protecting and furthering the provisions of the UN Convention on the Law of the Sea, the Port Authority could not deny it the right of entry.

b. Advise all the relevant parties as to all of their rights and liabilities in respect of all the incidents that occurred in the port.

The relevant parties involved in this scenario include the owner of MV Paula, MV Invictus, the port authority, the affected state which United Kingdom, the State where MV Paula is registered and the seafarers. The owner of MV Paula is strictly liable for the operations of the vessel and in this case and in accordance with the Nairobi Convention on wreck Removal, the owner of MV Paula has a duty to report to the United Kingdom’s Authority that the said vessel has been involved in casualty in maritime leading to a wreck. To this effect, the owner should report the exact location of the wreckage, its size and type, nature of the damage, the amount of the cargo and whether the same is harmful or hazardous in nature.

There is also the port authority acting on behalf of the United Kingdom who shall have the right to locate the wrecks. The authority acting at the behest of the affected state shall have the right to mark the wrecks. On removal of the wreck, the affected state, in this circumstance the United Kingdom, shall have the right to inform the state where MV Paula is registered and consult on measures to be taken. The owner of MV Paula shall bear the responsibility of removing the wrecks. The owner has the right to contract another person or any salvor to remove the wreck on their behalf.

The affected state, the UK, in this matter has a right to set the deadline within which it considers reasonable for the removal of the wrecks. It also has a right to intervene in the removal of the wrecks where it feels that should be necessary for efficient operations to avoid severe situations especially when the wreck is harmful. Any expenses born out of such locating, marking and removal of the wrecks shall be born by the owner of MV Paula.

The owner of MV Paula is liable for the costs incurred by the affected state, United Kingdom, in locating the wreck, marking and removing the same unless the owner can prove that the incident was caused wholly by acts or omissions of a third party. The affected state shall have the right to claim for costs but this should be brought within three years of the incident. The operator of MV Paula had a right of entry with the vessel at the port. As regards the seafarers, they have the rights to be evacuated in case of any danger.

The owner of MV Paula despite having the responsibility to remove the wreck and failing to remove it even after being informed to do so is liable to MV Invictus that collided with the wreck in damages. As such, much of the liability at the port is on the owners of the MV Paula who failed to obey the order to remove the wreck.

c. Explain, what difference, if any, would have been made to your answer if the Nairobi Wreck Removal Convention was not in force in the UK.

The United Kingdom is a signatory to the UN Convention on the Law of the Sea. This convention mandates state parties to put in place measures to avoid or curb matters of marine casualties. The most important aspect of this right is that the state parties to the convention are to act pursuant to customary international law of the sea and any other convention to protect their coastline. Even if the Nairobi Convention was not in force in the United Kingdom, liability would still attach to the owners of MV Paula on the removal of their own wreck. The UN Convention provides from non-pollution of the sea by all the actors.

The UN Convention further mandates state parties to protect the sea from pollution especially from hazardous substances and chemicals. to this end, state parties are even encouraged to put in place regulations and measures aimed at protecting the sea from harmful substances including the wrecks. Failure to comply with international customary law of the sea attaches responsibility on the violating state. The import of these measures is that even in the absence of the Nairobi Wreck Convention, the UN Convention and the International Law on sea matters are enough to control wrecks in the coastline. The flag state of MV Paula would thus be liable under international law of the sea for causing maritime casualty. Therefore, the liability for removing the wrecks would still be on the owners of MV Paula even if the Nairobi Convention was not in force in the United Kingdom.

Conclusion

The right of entry under the UN Convention is a right that should not be limited by Coastal states especially when the vessel in question is really in distress. On the issues of rights and liabilities, different actors have different rights and responsibilities to undertake but, in most cases, the burden will always be with the owner of the wrecks. There is need therefore for owners to always insure their vessels in anticipation.

Bibliography

Books & Journals

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• Molenaar, E., 2008. Coastal state jurisdiction over vessel-source pollution (Vol. 51). Kluwer Law International BV.
• Nordquist, M. ed., 2011. United Nations Convention on the law of the sea 1982, Volume VII: a commentary. Brill.
• Nordquist, M.H., Rosenne, S., Yankov, A. and Nandan, S.N., 2012. United Nations Convention on the Law of the Sea, 2013; a commentary. v. 1-7.
• O'Connell, D.P. and Shearer, I.A., 2010. The international law of the sea, v. 1-2.
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• Rothwell, D.R. and Stephens, T., 2010. The international law of the sea. Bloomsbury Publishing.
• Stevenson, J.R. and Oxman, B.H., 2009. The Future of the United Nations Convention on the Law of the Sea. American Journal of International Law, 88(3), pp.488-499.
• Tanaka, Y., 2019. Predictability and flexibility in the law of maritime delimitation. Bloomsbury Publishing.

Statutes

International Law of the Sea

Nairobi International Convention on the Removal of Wrecks.

United Nations Convention on the Law of the Sea