BY CAPT. A. K. BANSAL.
Prestige: The Liability of the Master
THE LIABILITY OF THE MASTER
On Nov. 13, 2002, the Bahamas flag, single hull, Aframax tanker Prestige suffered structural damage in heavy weather off Portugal. There was an explosive sound and a severe shudder of the hull. The ship started to list within 5 minutes. The Master of the ship ordered ballasting of #2 aft port and #3 port ballast tanks to counter the list. His request for a port of refuge was refused and the vessel had to be towed out to sea. Later she broke into two pieces and sank about 133 nautical miles off the coast. The ship contained about 68,000 tonnes of fuel oil in her submerged tanks. Initially, about 124 tonnes of oil was reported leaking daily but, with underwater repairs, the leakage was brought down to one ton. The oil leakage is likely to cause pollution of beaches and fishing grounds off the coast.
Prestige is owned by a Greek Company and was built in 1976. It was chartered by a Switzerland based Russian company and was insured in London. The American Bureau of Shipping (ABS) certified that she was in full compliance with all class requirements, though an audit of her files reported five points where class and statutory surveys failed to meet ABS’s rules. Some tanks were found not hydrostatically tested to the levels required by ABS’s own rules. In her last inspection, in September 1999 at Rotterdam, three minor deficiencies were found. She was further given a cursory inspection in October 2002 to confirm her compliance with basic anti-sea pollution measures.
There are various explanations for the sinking of Prestige. One such explanation says that three vessels carrying containers, wooden logs and pipes respectively had already sunk in that area. The containers or wooden logs could have collided with Prestige to cause the accident. Another explanation says that Prestige suffered from internal structural weakness and had already been repaired. The repairs were inadequate. The bad weather caused her structure to collapse. There is another explanation which says that she was not used to extreme weather like that of the Atlantic. In the teeth of heavy weather the vessel’s structure was subject to severe stresses and subsequently started to disintegrate.
Under the Maritime Laws, the ship has a legal personality in rem and in personam, and the Master of the ship has the status of alter ego. Therefore, if a ship causes pollution he is also held equally liable as the ship. Accordingly, the Master of Prestige, Apostolos Mangouras, was charged with causing ecological crime and was jailed in Spain. He was granted bail, set at the exorbitant amount of three million Euro. The request to reduce the bail was turned down. This followed a widespread opposition to the order of the Spanish Court. The International Transport Workers’ Federation described it as a blatant breach of provisions of the United Nations Convention on the Law of the Sea (UNCLOS). The Bahamas Maritime Authority said that the Spanish were holding the Master as a hostage. Two months later they challenged the huge bail amount as unfair and unreasonable under Art. 292 of UNCLOS. There were attempts to arrange for the bail fund but ultimately, after 85 days, the London P & I Club furnished the bail stating that there was nothing wrong with what the Master did.
No Master in his right mind wants to lose a ship as it ruins him both professionally and mentally. In the case of Prestige, none alleged that the Master was incompetent. He had been with her for 18 months and had commanded tankers for 32 years. His action of counter ballasting was exactly what was to be done in the given circumstances. If the cause of the accident was the fact that 163% overload was caused near Frame 71 due to counter ballasting in tanks also located near Frame 71, both owners and managers ought to have been aware of it and should have alerted the Master. The Master was justified in not apprehending any problems in the sailing of Prestige. Even if it was a human or professional error, it cannot be interpreted as a criminal offence. Since owners don’t have to carry the cost of the havoc created, most ship owners don’t look deeply into ship safety beyond keeping their class and safety certificates. They also cannot afford to prejudice their insurance interests. So, whether it’s the class, flag, ship owner or ship manager, the Master becomes the whipping boy for all.
SEAWORTHINESS OF THE SHIP
For 200 years the Certificate of Class was highly regarded as the mark of fitness by the International Maritime Community. The same certificate has lost its standing in the industry today, even though the standards have become more stringent. The fact remains that the Certificate of Class does not make a ship seaworthy unless it is factually so. Who then knows the ship best?
Banks which finance the ship look only into the class certificate. Even if they find out that the ship is unworthy, they do not report the same to the insurers for the fear that the insurance cover may be cancelled. Insurers rely exclusively on the findings of Classification Societies. Charterers only want to know whether a ship is in class and whether she has been insured or not. Surveyors and vetting inspectors are often compromised by those who pay for their services and usually report positive findings.
Ship’s staff, who live and work on her, ought to know the condition of their ship and her seaworthiness, but they are on short-term contracts and do not get to know beyond what is certified.
The Classification Society has access to scantlings and strength factors of the ship-girder calculated by naval architects, especially for ships like Prestige, built to their class. Each and every part of the ship must be accessible to their surveyors for periodical inspections and surveys. They specify repairs and replacements to keep her seaworthy and to comply to their class. They know or ought to know what structural weaknesses have crept into the ship girder and what has to be done to reinforce them. Therefore, first and foremost, the Classification Society knows a ship best.
Owners, their managers and superintendents have complete access to the ship. It is their duty to ensure proper inspection and to know the condition of their ship and to keep her fit to sail the oceans. They must know and understand that a signed piece of paper certifying class does not make a ship seaworthy, no matter who signs it and on whose letterhead it is written. Therefore they know the ship best and can avoid such calamities.
In a recent speech Mr. Iarossi, CEO and Chairman of ABS, said that marine transportation is definitely not risk-free but lamented the strongly negative image the public has of the shipping industry from the very infrequent, and sometimes very tragic, casualties. In the year 2000, out of the total sea-borne trade, the trade in oil at 37.6% and the quantity-wise loss due to sinking of ships was calculated to 0.00336%. Unfortunately no such public relations exercise can counter the effect of a bad spill affecting the livelihood of fishermen and other communities who live along a coastline and make their living from the sea.
The U.N. Convention on the Law of the Sea, UNCLOS, restricts the sovereignty of coastal states to their territorial waters. Art. 56 grants limited jurisdiction and allows specific laws to be adopted in their EEZ to prevent pollution from vessels. But such laws may not impose design, construction, manning, age or equipment standards on foreign vessels. The IMO is regarded as the only forum where safety and pollution prevention standards affecting international shipping should be considered and adopted.
CONCLUSION
Accordingly, all fifteen Member States of the EU have sent identical formal proposals to the IMO calling for an immediate ban on carriage of heavy grades of oil in single-hull tankers and an accelerated timetable to phase them out. They have also called for the Condition Assessment Scheme, which was adopted in 2001 in the wake of the 1999 Erika incident, to be applied to tankers of over 15 years of age. An informal group of experts was commissioned in 2000 by the IMO, soon after the Erika sank.
The IMO has now reactivated this group of experts. This will be coordinated by the IMO’s Marine Environment Division together with independent experts nominated by industry organizations, to be finalized by the end of May 2003 for immediate consideration by MEPC 49. This will then be further processed and considered by IMO member states in July. MEPC can then decide to hold an extra meeting in December, to consider and formally adopt measures arising from these proposals. But China, Japan and South Korea are expected to vote against any enhancement in the existing, agreed phase-out.
Realistically, in modern shipping practice, effective control on strength, maintenance and pollution prevention capabilities of a ship’s structure are not in the hands of a shipmaster. Therefore punishing, persecuting or prosecuting a shipmaster does not serve the primary purpose of criminal law, viz. that of preventing recurrence of similar crimes. Unless those with actual and effective control are personally brought to criminal justice, such incidents are bound to recur with increasing frequency. The European Commission has now proposed making maritime pollution a criminal offence, and to go behind the ship and Master to jail any owner, operator, charterer or classification society found to have caused or contributed to illegal pollution intentionally or by gross negligence. This should be welcomed by the entire International Maritime Community as it will oblige such people to be accountable. The power to undertake investigations and institute proceedings in respect of any such discharge is contained in Art. 218 of UNCLOS 1982. It only needs to be redefined and amplified.
Salvage experts, vessel’s operators, experienced shipmasters and lawyers, are all agreed that it was wrong to send the stricken ships out to sea. Both ships and their cargoes could have been saved if a port or place of refuge was allowed. Also, by refusing shelter to them, hundreds of miles of coastline was polluted instead of a small, controllable part in which pollution could have been contained. The Spanish Prime Minister Jose Maria Aznar later admitted that decision to order the stricken Prestige out into the Atlantic was taken without the aid of technical reports.
It is possible that we were late in confronting specific situations and that we made the wrong decisions. Correct, constructive and effective actions can be taken in such situations, not only to avert similar catastrophes in the future, to the benefit of our marine environment, but also to save the ships and cargoes.
Since this matter, which involves Public International Maritime Law, is an important issue and affects each and every coastal state worldwide, it has sparked off a new round of debate on the issue of ports or places of refuge. Even though the EU Council has adopted a resolution to adopt plans to designate safe refuge by July 1, 2003, there does not appear to be any mention of this matter in the latest proposals submitted to IMO by all fifteen members of the EU. Regrettably most coastal states have not been active to force the issue to solve this problem internationally. Yet it is urgent and important enough to merit immediate attention of the IMO and all its member states.
The Author is a Master Mariner, Bar-at-Law and Fellow ICA.