Looking for a place of refuge

Currently the tug based in Orkney, regularly mentioned in MJ’s Tugs and Towing section, is the only such vessel. The case for reinstating ETVs elsewhere has been well argued but there is also concern about finding a Place of Refuge (PoR) for vessels once they have been salvaged or saved in UK waters. Many port and local government authorities are reluctant to let casualty vessels into their ports for fear of pollution, berth blocking or legal complications.

Vessels in distress are frequently seen as 'lepers of the seas', but the Dutch coaster Lady Alida that suffered engine failure and was saved by the Penlee and Sennen Cove lifeboats in March 2017 was one year old and operated by responsible owners. The lifeboats held the 3700dwt ship offshore for up to 11 hours before a tug had been contracted and as the vessel was posing no threat to the environment it was then permitted to anchor in Falmouth Bay.

That incident has unsettling similarities with one of the most tragic UK maritime disasters of recent times when the Union Star, on its maiden voyage to Ireland in 1981, suffered engine failure in a Force 12 hurricane and foundered on the rocks, taking with it the lives of all its crew and passengers along with the crew of the Penlee lifeboat the Solomon Browne. In that case the ship's captain had refused to take a tow offered by a tug under the Lloyds Open Form. Since then, and following several high profile shipwrecks, new regulations have given the authorities power to order or 'Direct' a vessel's master to accept assistance and allow their ship to be taken to a Place of Refuge.

The guiding principle of rescue and salvage has always been that the preservation of life is the priority, followed by that of property (notably the vessel and cargo involved). However, society's priorities now lie more in the protection of the environment than in the value of ships.

Small coasters carrying dry bulk cargoes are comparatively low value, whereas the value of a container ship or tanker includes its cargo. Salvaging that cargo can be difficult and time consuming, while the possibility of an oil spill from bunkers or tanker cargoes is the biggest worry.

Once a vessel has been salvaged, however, there remains the problem of where to take it to be lightened, cleaned up, repaired or dismantled. No community would be keen to accept such a potential hazard as a shipwreck on their doorstep and a game of 'pass the parcel' can ensue.

During another incident in 2014, also in west Cornwall, the Falmouth Harbour Master Captain Mark Sansom refused access to the port for a Ukranian-owned coaster Sea Breeze, abandoned by its crew and being kept afloat by salvors' pumps. Capt Sansom says "The Sea Breeze had a flooded engine room but still had sufficient buoyancy to remain afloat. . .The reason for refusing entry was that it had been abandoned and therefore became a 'derelict' in salvage law terms. There was no proper salvage contract in place (a towage contract had been placed by the owner) which meant that there was no person legally in command of the vessel. There were also issues about gaining financial security that led to the refusal of the vessel when entry was initially requested."

The salvor, KML, was directed to tow the vessel along the coast to St Austell Bay. However, the Fowey Harbour Master Captain Paul Thomas at first denied access to his port until the MCA agreed to underwrite the risk of possible foundering, berth blocking or loss of any port dues. After finding a berth at the china clay wharf, the Sea Breeze was eventually accepted at the lay up buoys in the River Fal, under the jurisdiction of the Truro harbour master.

According to KML's Diccon Rogers: "The use of the long-established salvage contract Lloyds Open Form (LOF) with its 'No Cure, No Pay' clause is now in decline and it can be costly and time consuming to obtain payment, with many salvors now preferring to use other terms of contract. The SCOPIC clause of LOF is intended to address environmental concerns in big incidents but is less easy to implement when dealing with smaller ship incidents."

One example of the LOF procedure occurred during the infamous Torrey Canyon incident of 1967 that created the first major environmental crisis caused by a large oil spill. Following several days’ work on the stricken supertanker the Dutch salvors Wijsmuller eventually pulled out of the job, after losing the lives of two of their crew, some equipment and much wasted effort trying to salvage the vessel. That episode started the shift of emphasis from preservation of property to that of environmental protection.

The case of another tanker, the Prestige, which broke up off the coast of Spain in 2002 gave further impetus to establishing a code of practice. That vessel had suffered structural damage and salvage tugs were soon connected but the Spanish authorities refused to let them bring the ship inshore, denying a place of refuge, and insisted it was taken out into the Atlantic. The vessel then broke up, spilling thousands of tonnes of oil which was washed ashore on the Iberian coastline causing another environmental disaster.

One function of the European Marine Safety Agency (EMSA), set up in 2002, was to establish a marine pollution, preparedness, detection and resource capability to protect EU coasts and waters from pollution by ships.

The UK system is based on results of the Donaldson report which followed the MV Braer oil spill in Scotland and the Sea Empress incident at Milford Haven, and the creation of SOSREP who has the legal power of Direction to instruct vessels and salvors. The Coastguard can request a tug and facilitate a salvage agreement but if there are serious environmental or navigation issues Sosrep can direct a vessel to accept a tow. This happened recently when a ship was on fire off Holyhead and was directed to Liverpool where fire fighting facilities were available. "SOSREP has the power to direct anybody," says Capt Sansom. "There is a penalty if refused but it is a collaborative process and I have never been in a situation where the wishes of the harbour authority are overruled."

In the case of the Lady Alida the ship was eventually directed to accept a tow from a large AHT, the 300mt bollard pull Alp Centre, which happened to be close by in Mounts Bay. As Capt Sansom states: "In the absence of an ETV, casualty vessels are reliant on a 'vessel of opportunity'."

The Alp Centre was tasked to take the tow even though MTS Indus was steaming west from Brixham against heavy seas, the Fowey tug Morgawr was heading homeward from Falmouth and KML's Tennaherdhya was in Falmouth harbour on standby to proceed.

Although the Alp Centre happened to be on hand at the time of that incident most commercial operators as well as the UK government find it too expensive to keep salvage tugs permanently on station. The French Abeilles vessels are on permanent charter to the French government and when those tugs are called into action the French Navy is often on hand to ensure that government instructions are obeyed. In the USA, the Coast Guard will take an interest in any such incident. The Netherlands has a centralised command and control set up in Rijkswatetstaat, which is part of the country's ministry of transport.

Diccon Rogers says "In Europe there is a structure of good intentions but attitudes to command and control of salvage situations vary widely between coastal states "

HM Coastguard points out that there is no statutory obligation on the UK Government to provide towing and salvage services when ships get into difficulty. When an incident does occur it is the master’s responsibility to alert the Coastguard which can provide assistance to identify commercial tug availability. It is then the responsibility of the owners or insurers of the casualty vessel to negotiate a contract for the services to be provided. This contract can be arranged through a broker or with the tug owners directly. In Scotland the re-introduced ETV is contracted on a standby basis only; once the tug is employed and connected to the casualty vessel they are then under the conditions of LOF.

IMO Guidelines on Places of Refuge for Ships in Need of Assistance recommended that coastal states develop procedures that would enable an efficient and objective risk assessment in order to allow the ship into a PoR. They used to be known as 'Ports of Refuge' but PoRs around the UK coast can be ports, sheltered bays or safe anchorages.

In compliance with Article 20 of EU Directive 2002/59 (Vessel Traffic Monitoring Directive), the UK has set up a system to identify PoRs for vessels in need of assistance. Unlike other countries, the UK does not have pre-designated PoR locations. The Coastguard consider that every shipping or offshore incident is unique and will be assessed on a case-by-case basis.

The SOSREP is the designated competent authority to assign a place of refuge in the UK Exclusive Economic Zone (EEZ). The MCA Counter Pollution Branch, with the assistance of the various UK Standing Environmental Groups, supports the SOSREP by analysing the PoR options available and recommending those most suitable for his consideration and final determination. When all the environmental and socio-economic factors have been considered, the casualty vessel will be taken to the agreed PoR for damage assessment, offloading of fuel and pollutants, repairs or cargo transfer/discharge.

Small coaster calamities rarely make the headlines, but big ship disaster stories can run for weeks and months. Two newsworthy cases which exemplify the need to make the right decision are that of the Prestige where the refusal of access to a safe haven caused an environmental disaster, and the MSC Napoli, the UK-flagged container ship successfully beached in Lyme Bay in 2007 and which was eventually broken up in situ over 924 days with no serious pollution.

The multi-agency Environment Group was later praised by the Napoli’s owners and other responders for its effectiveness and reactive approach. Reflecting on events 10 years later, Julian Wardlaw from the Environment Agency, who chaired the Group, said: "The grounding of the Napoli was such an unusual event we had to be very innovative." At the later enquiry he said he supported the decision to deliberately ground the stricken ship off East Devon, describing it as the ‘least worst option’.

Hugh Shaw, the current SOSREP said: "The strategy was unusual in that we deliberately grounded the ship in Lyme Bay to mitigate against a potentially far more serious situation. Once the vessel was in the shallow, sheltered waters of Lyme Bay, the salvage operation was infinitely more manageable. Failure to take action would have led to a significant risk of the vessel sinking in the open seas of the English Channel which could have led to long term environmental consequences as well as navigation safety issues."

While the SOSREP system does have its critics, the MCA claims the handling of the MSC Napoli stranding set a benchmark in maritime incidents and is used in training exercises to demonstrate how best to respond to maritime and coastal emergencies and safeguard the public and environment.

By Graeme Ewens