NATIONAL CONTINGENCY PLAN FOR MARINE POLLUTION FROM SHIPPING AND OFFSHORE INSTALLATIONS
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APPENDIX D
INTERVENTION POWERS SHIPPING
Introduction
D.1
This appendix provides guidance on the intervention powers conferred by UK merchant
shipping legislation.
D.2 It describes both the principal intervention powers derived from international conventions and other statutory powers that the Secretary of State can use to prevent or minimise safety and pollution risks posed by ships.
Statutory basis, scope and derivation
of the powers
Intervention powers deriving from international treaties
Statutory
basis
D.3 Schedule
3A to the Merchant Shipping Act 199513 confer powers
on the Secretary of State.
Scope
D.4
The powers enable the Secretary of State to give directions and to take such
other actions as may be necessary in respect of the ship or its cargo. The Secretary of State
may use the powers to prevent or minimise pollution, or the threat of pollution, or to remove or reduce
safety risks.
D.5 The powers under Schedule 3A do not apply to foreign ships outside UK pollution control zone14. The Merchant Shipping (Prevention of Pollution) (Intervention) (Foreign Ships) Order 1997 confers powers in respect of such ships.
Derivation
D.6
The UK legislation derives from the 1969 Intervention Convention15,
the 1973 Protocol16 to that Convention, and Article 221
of the United Nations Convention on the Law of the Sea 1982 (“UNCLOS”)17.
Scope of application of the intervention
powers
Types of incident
Intervention
powers deriving from international treaties
D.7 The Secretary of State may generally exercise the intervention powers deriving from international treaties when an incident satisfies the three criteria listed in Schedule 3A 1(1) and repeated in 2(1).
D.8 Schedule 3A 22(1) defines the term “accident”. An accident is: a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or cargo. The definition follows the wording used in the 1969 Intervention Convention and in UNCLOS.
D.9 The requirement for there to be a threat of significant pollution and an urgent need to use the powers derives from provisions of the Intervention Convention and UNCLOS. These treaties provide that the exercise of the intervention powers must have the aim of preventing pollution, or a threat of pollution, which the coastal State may reasonably expect to result in major harmful consequences.
Types of pollution
D.10
The intervention powers that derive from international treaties apply to pollution
by oil or by another harmful substance.
D.11 Schedule 3A 22(2)(a) confers intervention powers in respect of pollution by “oil”. “Oil” means oil of any description, including spirit produced from oil of any description, and includes coal tar19.
D.12 Schedule 3A 22(2)(c) provides that any reference to hazardous substance also includes a reference to any other substance that the Secretary of State has prescribed by order20. Schedule 3A 22(2)(b) further defines a hazardous substances to be other substances that are liable:
Foreign
ships
D.13 The UK has a duty under the 1969
Intervention Convention and its 1973 Protocol to notify other interested States, particularly the flag
State. This duty arises if we exercise the intervention powers in respect of a foreign ship located
beyond the UK’s territorial sea. Where time permits, the UK must also consult these States before
taking any measures.
D.14 Schedule 3A 20(1) provides that the Secretary of State may exercise the powers to make a direction in respect of a foreign ship that in his opinion is exercising neither the right of innocent passage through the UK’s territorial sea nor the right of transit passage through straits used for international navigation.21
Who exercises the powers?
MCA
staff
D.15 Senior staff within DfT’s Maritime
and Coastguard Agency (MCA) normally exercise the Secretary of State’s powers, particularly:
D.16 Any of the above may authorise a Counter Pollution and Salvage Officer (CPSO) or the Head of Counter Pollution Branch or to use the powers in the response to a specific incident.
D.17 During the salvage phase of the response to a marine pollution incident, the normal operational arrangement is for the SOSREP to exercise the powers or, in the SOSREP’s absence, his stand-in as detailed in paragraph D.15 above. The Government has appointed the SOSREP to provide overall direction for all major marine pollution incidents involving the salvage of ships and offshore installations. Ultimate accountability for the SOSREP’s decisions lies with MCA Chief Executive and Ministers.
Other persons
D.18
Schedule 3A 4 provides that the Secretary of State may authorise other persons
to exercise the intervention powers. This would enable the Secretary of State or his representative,
in a case of force majeure, to authorise a salvor to take a ship out to sea and sink it.
How can we use the powers?
Directions
Powers
deriving from international treaties
D.19 When
an incident satisfies the criteria contained in Schedule 3A 1(1), the Secretary of State may give directions
as respects the ship or its cargo:
D.20 However, it is unlikely that all these options would be available in respect of a foreign ship located beyond the pollution control zone. In such a case, the Secretary of State may only give directions to persons or companies who owe allegiance to the UK.24
D.21 Directions may require a person to take, or refrain from taking, any action or omission of any kind whatsoever. These powers are very wide and can include a direction in relation to:
D.22 When an incident satisfies the criteria specified in Schedule 3A 2(1), the Secretary of State may issue a direction (in writing or confirmed in writing as soon as reasonably practicable) to a person in charge of coastal land or premises. The direction may require the person to whom it is given to grant access or facilities to or in relation to the ship or any person or thing which is or was on the ship. In particular, a direction may require a person:
Powers
under Schedule 3A 3
D.23 Under
Schedule 3A 3, the Secretary of State may give directions to the owner of the ship, any person in possession
of it, or the master. Directions may require any of the following:
Other
actions
D.24 If in the opinion of the Secretary
of State, giving directions is inadequate, the Secretary of State may take, or authorise, direct action26,
including sinking the ship27.
Guaranteeing compliance
D.25
Non-compliance with a direction is an offence28,
punishable by a fine. So is the intentional obstruction of any person acting on the behalf of
the Secretary of State or according to a direction.
What is the consequence of using the
powers?
D.26 Schedule 3A 1 provides power
to direct salvors to remain on scene. Furthermore, the use of the intervention powers does not prejudice
a salvor’s ability to receive compensation from the ship's hull and cargo insurers and from the shipowner’s
liability insurer29.
D.27 Under Schedule 3A 14, the Secretary of State may be liable to pay compensation if any action taken were:
D.28 Where the Secretary of State’s Representative directs a vessel to enter a UK port and pollution results causing the port authority to respond under the terms of its responsibilities, the Port Authority shall be entitled to:
D.29 If the MCA use the intervention powers to take reasonable and proportionate measures, it would generally be entitled to recover compensation. This entitlement would cover costs incurred as a consequence of taking measures and any resulting loss or damage31.
13 Schedule 3A was introduced in the Marine Safety Act 2003 which also repealed sections 100C to 100E (movement of ship) and sections 137 to 141 (pollution directions) of the Merchant Shipping Act 1995 and sections 2,3 and 10 of the Merchant Shipping and Maritime Security Act 1997. back 14 The Merchant Shipping (Prevention of Pollution) (Limits) Regulations 1996 (SI 1996/2128, amended by SI 1997/506) set the limits of the pollution control zone. back 15 International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969. The UK has been party to the Convention since 1975. back 16 Protocol relating to Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil 1973. The UK has been party to the Protocol since 1983. back 17 The UK became a party to UNCLOS on 24 August 1997. back 18 Before the entry into force of section 2(2) of the Merchant Shipping and Maritime Security Act 1997, the more onerous test of pollution on a large scale in the UK or the UK’s territorial sea applied. In the case of a foreign ship located beyond the pollution control zone, the Secretary of State must be satisfied that there is a need to protect the UK coast, the UK’s territorial sea or the UK’s pollution control zone against grave and imminent danger of pollution. back 19 Article II(3) of the 1969 Intervention Convention defines “oil” as crude oil, fuel oil, diesel oil and lubricating oil. However, the 1973 Protocol covers intervention in respect of all types of oil. back 20 The Secretary of State has prescribed such substances in the Merchant Shipping (Prevention of Pollution: Substances Other than Oil) (Intervention) Order 1997 (SI 1997/1869). This order came into force on 1 September 1997. back 21 Section 313(2A) of the 1995 Act (added by the 1997 Act) provides that the phrases “right of innocent passage”, “right of transit passage” and “straits used for international navigation” are to be construed in accordance with UNCLOS. There are three straits used for international navigation in the UK territorial sea: the English Channel, the Fair Isle Channel and the North Channel. back 22 The MCA Chief Executive would not normally have an operational role in managing maritime incidents. The Chief Executive‘s role is to continue to manage MCA as a whole. back 23 Amendments to section 137(2) of the 1995 Act made by section 2(3) of the 1997 Act (now superseded by the Marine Safety Act 2003) introduced the power to give directions to pilots, harbour masters and harbour authorities. The amendments came into force on 17 July 1997. back 24 Article 4(2) of the Merchant Shipping (Prevention of Pollution) (Intervention) (Foreign Ships) Order 1997 sets out the persons to whom the Secretary of State may issue directions in such circumstances. These persons are individuals who are citizens of the UK or one of its colonies and bodies corporate established under the laws of a part of the UK. back 25 A direction requiring a ship to be removed from the UK territorial sea would need to be reasonable in view of the risk. Schedule 3A 20(2) provides that the Secretary of State may give no such direction to a UK ship. back 26 Schedule 3A 4 provides that if, in the opinion of the Secretary of State, the power to give directions under Schedule 3A 1 and 2 is, or has proved to be, inadequate, the Secretary of State may take, as respects the ship or its cargo, any action of any kind whatsoever, including taking over control of the ship and sinking or destroying it. Schedule 3A 4 also provides that if, in the opinion of the Secretary of State, the power to give directions under Schedule 3A 3 is, or has proved to be, inadequate, the Secretary of State may take any such action as the Secretary of State has power to require to be taken by a direction. back 27 Before sinking a ship, however, the person exercising the intervention powers would need to arrange for the issue of a licence under Part II of the Food and Environment Protection Act 1985 for the placement of the ship on the seabed. Defra issues licences for UK territorial sea adjacent to England and Wales; the Fisheries Research Services, Marine Laboratory in Aberdeen for UK territorial sea adjacent to Scotland (on behalf of the Secretary of State for Transport in accord with reserved powers under Schedule 5 of the Scotland Act 1998); and EHS for waters adjacent to Northern Ireland. back 28 Schedule 3A 5. back 29 Since 1 January 1995, salvage law in the UK derives from the 1989 Salvage Convention. If salvors are successful in saving a ship and her cargo, they will receive a proportion of the value of the salved property in reward (paid by the ship’s hull and cargo insurers). However, the 1989 Convention also ensures that salvors get, and stay, involved in salvage operations where there is a threat of damage to the environment by introducing entitlement to “special compensation”. Special compensation is equal to the salvor's expenses (the shipowner’s liability insurer pays the difference between the amount of special compensation awarded and the value of the salved property). The Convention entitles salvors to a reward even if they are complying with a direction given using the intervention powers. back 30 Shipowners, salvors and harbour authorities are most likely to bring claims for compensation. The High Court (or, in Scotland, the Court of Session) would hear and determine such claims. back 31 It would generally be possible to recover compensation from the shipowner, the shipowner’s liability insurer or an international compensation fund. Under section 153 and 154 of the 1995 Act, shipowners are strictly liable for any damage caused in the UK by measures reasonably taken to prevent or minimise pollution by persistent oil. If the ship were a tanker, additional compensation would be available, if necessary, from the International Oil Pollution Compensation (IOPC) Fund under section 175 of the Act. Once the International Convention on Liability and Compensation in connection with the Carriage by Sea of Hazardous and Noxious Substances 1996 (the “HNS Convention”) is in force, compensation will similarly be available from the shipowner and the HNS Fund. Compensation would be available for reasonable measures taken to prevent or minimise other types of damage caused by dangerous and polluting cargoes carried on ships. back |