ISU Warns over new Bunker Spills Convention

Salvage teams mobilised from the Netherlands, Singapore and Australia to attend the ship, which was in ballast at the time but with some 700 tons of fuel oil in its bunker tanks.

The vessel was subsequently refloated by an ISU Member salvage company using ground tackle and tugs. But what, asks Witte, if 700 tons of fuel oil had spilled into this sensitive sub-tropical sea?

Fuel oil is one of the most difficult pollutants to clean up. Even a small bunker spill can trigger a major counter pollution operation and lead to expensive claims.

Salvors clearly have a commercial intent to salve ships and cargo but they also want to protect the environment by preventing pollution, keeping bunkers and other pollutants in the ship or removing them if necessary. Indeed under the terms of the 1989 Salvage Convention and Lloyd’s Standard Form of Salvage Agreement, salvors have an obligation to use their best endeavours to prevent or minimise damage to the environment whilst engaged in salvage operations.

Last year, members of the International Salvage Union recovered over 1.1m tons of pollutants from 282 vessels, including 109,266 tons of bunkers. The importance of this work is in renewed focus as the International Maritime Organization’s Bunker Spills Convention comes into force on 21 November this year.

There was controversy in 2001 when IMO member governments decided to exclude from the Bunker Spills Convention the responder immunity provisions that had been included in earlier pollution compensation conventions.

Although IMO member governments were encouraged to incorporate a suitable resolution on responder immunity in their domestic laws, failure to provide protection from prosecution for the salvor within this key Convention itself rang alarm bells.

Salvage is not risk free, and pollution is possible. Given variables such as the weather, it is impossible to perform salvage under a regime of strict liability. But a number of coastal states do apply strict liability to the salvor’s work. The Bunker Spills Convention, therefore, remains a key concern for salvors. A number of IMO member states were open about not wishing to grant responder immunity to salvors because they wanted to be able to pursue the salvor should a salvage operation go wrong.

Salvors do not seek complete immunity. They recognise that they should be held to account for a fault for which they are properly responsible. But they do seek protection from strict criminal and civil liability for pollution damage.

ISU members were advised which states took a position against responder immunity. Salvors have to consider carefully the protection of their own interests when weighing their response to a casualty in the territorial waters of a country that does not grant responder immunity.

Coastal states rely on commercial salvors who, in many cases, offer the best hope of preventing a catastrophic spill. Putting that in jeopardy is short sighted. ISU members are right to be cautious and concerned at their exposure under the new Bunker Spill Convention. And that could undermine protection of the marine environment.