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The Braer tanker incident: Some lessons from the Shetland Islands
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Pergamon
0025-326X(94)00151-0
Marine Pollution Bulletin, Vol. 29, Nos 6-12, pp. 361-367, 1994 Elsevier Science Ltd Printed in Great Britain 0025-326X/94 $7.00 + 0.00
The Braer Tanker Incident: Some Lessons From the Shetland Islands NICHOLAS EDGELL Norton Rose, Blackfriars House, P.O. Box 570, 19 New Bridge Street, London EC4V 6DH, UK
incidents in the widest context, including leakages from shore-based facilities, vessels that illegally pump out ballast at sea after crude oil washing, pollution caused by offshore installations as well as the major tanker incidents. However, the major marine incidents are responsible for only a small percentage of the oil that is spilled, pumped or leaked into the world's seas every day, although major tanker incidents are dramatic, high profile and newsworthy events. This paper discusses the oil pollution resulting from such incidents, more particularly the incident of the Braer, from the viewpoint of international legislation. Here, legislation is taken in its widest context, encompassing any laws, rules, regulations or agreements as appropriate. Legislation related to oil pollution operates essentially on three fronts: preventive, curative (or clean-up), and in terms of liability and compensation. In essence, the more successful the preventive phase, the less the need for curative measures, but the clean-up phase receives most attention whenever a major spill occurs. In addition, although the efforts involved in oil pollution legislation are directed towards how spills will be cleaned up, and who will pay for it, the present emphasis is on how to prevent spills occurring. On 4 January and the early hours of 5 January 1993, the Braer was on passage from Norway to Canada and routed to pass through the Fair Isle Strait, a channel 22 miles wide between the Orkney and Shetland Islands and Oil pollution legislation, particularly in relation to the regularly used by laden oil tankers. The cargo included marine environment, has been a growth industry over the about 84 500 t of light crude oil, 1700 t of heavy fuel oil past 25 years or so for lawyers, diplomats and many and some 125 t of diesel oil. The 17-year-old Liberian others who have been involved in negotiating the myriad registered vessel, with a crew of 34, grounded on the of bilateral, multilateral and international agreements, southern shore of the Shetlands, at Garth's Ness shortly conventions and laws. It is considered appropriate that before 1100 hours on 5 January. the subject of oil pollution in the marine environment The formal enquiries into the accident have taken the should be treated not only as a matter of national form, firstly, of an investigation by the Marine Accident importance, but also international importance. The Investigation Branch (MAIB) of the UK Department of demand for oil and oil products and their transport by Transport. Broadly, their task has been to investigate the tankers at sea involves an inherent danger of spillage on a causes of the accident, the seaworthiness of the vessel, the major scale. In the period December 1992 to early June competence of the crew and the action taken before and 1993 there were, for example, three major incidents on the after the grounding. Secondly, the UK Secretary of State West European coastline: the Aegean Captain at the port for Transport appointed Lord Donaldson to set up a of La Corufia in northern Spain in December 1992, the public enquiry with its terms of reference 'to advise on Braer incident in January 1993 and the collision involving whether any further measures are appropriate and the British Trent off the port of Antwerp at the beginning feasible to protect the UK coastline from pollution from of June 1993. merchant vessels'. The findings of the MAIB report and Much of what has been agreed internationally or is the Lord Donaldson's inquiry were made public in April 1994 subject of national laws is directed towards oil pollution and are discussed in the Addendum to this paper. On 5 January 1993 the tanker Braer grounded on the southern shore of the Shetland Islands. The vessel was carrying a cargo of about 84 500 t of light crude oil. The incident occurred during severe storms in a remote area of great ecological importance. Because of the bad weather it was not possible to salvage the vessel or any part of her bunkers and cargo. The circumstances which led to this accident are briefly reviewed and lessons that might be learned from this incident are suggested. It is argued that the only viable means of minimizing tanker incidents and providing compensation for those who suffer loss when they do occur is through an internationally adopted framework of rules that have regard to operational and commercial considerations as well as to environmental issues, and which can be enforced to a consistent standard throughout the world. The following lessons can be learnt from this incident: 1. the need for improved internationally agreed rules requiring early reporting of difficulties being experienced by laden tankers; 2. the need to arrest the decrease in the number of professional salvage companies; 3. the value of well planned and well rehearsed emergency response plans; 4. the need for better anchoring systems; and 5. the need for whatever action is taken to be appropriate to the circumstances of each particular incident.
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The Cause of the Braer Incident Late on 4 January 1993 the duty engineer shut down the boiler that heated the vessel's bunkers for routine maintenance. Subsequent attempts to relight the boiler using the vessel's diesel oil supply failed and shortly before midnight, as the heavy fuel oil cooled, the main engine was switched over to diesel. At about this time a substantial amount of water was found to have entered the diesel tanks as the result of heavy pipes stowed on deck having become loose in the rough weather and damaging the ventilation pipes installed to release gases from the diesel tanks. Unsuccessful efforts to relight the boiler and to drain the diesel tank occurred while the vessel continued to encounter heavy seas. The chief engineer, summoned at 0230 hours on 5 January, at 0430 hours recommended the ship's master to seek a place of safety where, in quieter seas, the water could be separated from the diesel. Shortly after 0430 hours the vessel altered course to the south, heading for the Moray Firth, a protected bay on Scotland's east coast. Unfortunately, the main engine then stopped and the generators failed, presumably no longer able to cope with the contaminated diesel oil. The vessel was then blown by heavy winds northwards towards Sumburgh Head, about 10 miles away at the southern extremity of the Shetland Islands. By then, if not before, the vessel was in urgent need of assistance, having regard both to the very severe weather and also her proximity to the neighbouring land mass. This was about six hours since the initial problem had arisen, during which time no contact had been made with the British authorities, and despite the Braer's proximity to the Shetlands, it was to be a further five hours before a tug would reach her. The ship's master's initial report at about 0500 hours considered that the vessel would drift clear of land and out into the North Sea and that he did not immediately require assistance. Nevertheless, shortly after 0600 hours the authorities in Lerwick had located the Star Sirius, a tug supply vessel, rather than a dedicated salvage tug, which reached the vessel at about 0945 hours, by which time the crew of the Braer had been lifted off by helicopter. The very rough conditions prevented a party being put on board or a tow line secured. At about 1030 hours one of the vessel's crew was put back on board to release the vessel's anchors or to secure a tow line from the tug. As this was not possible, he was lifted off again and, shortly before 1100 hours, with her anchors still stowed, the vessel grounded on the rocks of Quendale Bay. The incident was at first regarded as potentially an environmental disaster comparable with the Torrey Canyon, which spilled about 30 000 t of crude oil off the Cornish coast in 1967. In addition to concern for the large stocks of farmed salmon in the area and for the local offshore fishing industry, there was considerable concern for the wildlife of the area. The Shetland Islands are a particularly important area for cliff-nesting birds and support an important colony of about 700 otters. The potential risk to human health, which subsequently became a major issue, was not initially considered important. However, although some environmental damage did occur, it is now generally acknowledged that this was not as serious a disaster as was at first predicted. 362
Indeed, about three weeks after the grounding, the Joint Response Centre released a press statement to the effect that the wreck no longer presented 'a serious pollution threat'. In essence, the storms which had partly caused the accident were subsequently responsible for dispersing the vessel's bunkers and oil cargo.
Lessons to be Learned from the Incident Internationally agreed practice There is a need for tighter internationally agreed rules about the time at which the master of a laden tanker is required to report that the vessel is in difficulty such that time is not lost. Although easier with hindsight, decisionmaking in perhaps rough seas, at night, when a problem has occurred is not easy. A master has the dilemma: if he reports unnecessarily eady that the vessel is in difficulties, he draws unwelcome attention to the vessel (which may, in fact, be perfectly well maintained) and also to h e r owning company, perhaps he incurs costs for the owners and may be considered as alarmist; if he delays, he increases the risk of the vessel being the cause of a major pollution incident, endangering the safety of personnel and the subsequent judgment that he should have reported his difficulties earlier. There are two important pieces of international legislation relevant to this situation. Firstly, the 1973 M A R P O L Convention as amended by the 1978 Protocol (MARPOL 73/78) (the International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 relating thereto). Article 8, entitled 'Reports on incidents involving harmful substances' provides, inter alia, that A report of an incident shall be made without delay to the fullest extent possiblein accordancewiththe provisionsofProtocol 1 to the present Convention.
AS defined in Article 2, 'incident' means 'an event involving actual or probable discharge into the sea of a harmful substance, or effluents containing such a substance'. Protocol 1 provides, inter alia, that the report shall be made when the incident involves discharge or probable discharge of o i l . . , resulting from damage to the ship or its equipment or for the purpose of securing the safety of a ship or saving life at sea [Art. 2 para. (1)(a)]
The contents of the report to include I. the identity of the ship(s) involved, 2. the time, type and location of the incident, 3. the quantity and type of harmful substance involved and 4. assistance and salvage measures required (Protocol 1 Article III). The expression 'damage to the ship or its equipment' is amplified by the relevant part of Resolution A.648(16) (adopted on 19 October 1989) which is in terms Recognising further that an incident involving damage, failure or breakdown of a ship, its machinery or equipment could give rise to a significant threat of pollution to coastlines or related interests...
The Convention further sets out, in paragraph 1 of the Annex to the Protocol, the General Principles with which,
Volume 29/Numbers 6-12 so far as is practicable, ship reporting systems and reporting requirements should comply, including special reports from ships concerningdefects or deficiencies with respect to their hull,machinery,equipment or manning, or coocerning other limitations which could adversely affect navigation and for specialreportsconcerningincidentsof actual or probablemarine pollution... (Annexto Protocol 1 para. 1.1 sub-para..15) •
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and in paragraph 3, under the heading Guidelines for Reporting Incidents Involving Harmful Substances and/or Marine Pollutants that The intent of these Guidelines and those contained in the appendix is to enable coastal States and other interested parties to be informed without delay of any incident giving rise to pollution, or threat of pollution,of the marine environment, as welt as of assistance and salvagemeasures, so that appropriate action may be taken. (Annexto Protocol 1 para. 3.1) The second relevant piece of legislation is the International Convention on Oil Pollution Preparedness, Response and Co-operation 1990 (OPRC). This is the latest International Maritime Organisation (IMO) umbrella convention, but has yet to come into force, lacking the required ratification by 15 states. By mid-1993 10 states had ratified (Australia, Egypt, Finland, France, Iceland, Nigeria, Pakistan, Seychelles, Sweden and the USA). Article 3 requires that all vessels flying the flag of a signatory state 'shall have on board a shipboard oil pollution emergency plan as required by and in acordance with the provisions adopted by the Organisation for this purpose' and, by Article 4, that masters of vessels shall 'report without delay any event on their s h i p . . , involving a discharge or probable discharge of o i l . . . ' . The provisions adopted by the I M O in relation to shipboard oil pollution emergency plans for the purposes of Article 3 can now be found in Regulation 26 of Annex I of M A R P O L 73/78, which came into force on 4 April 1993 after being adopted by the Marine Environment Protection Committee (MEPC). The requirement to make a report is, therefore, that there is involved an 'actual or probable discharge' of oil. Where there has been an actual discharge, the position is clear: a report must be made. However, where a defect, deficiency or damage to hull, machinery or equipment, but no actual discharge has arisen, it is left to the judgment of the master (possibly in consultation with the owners) as to whether a discharge is probable. This, it is suggested, means that, with regard to all of the circumstances, a discharge is something which is likely or can reasonably be expected to occur. The relevant circumstances are addressed in paragraph 3.4 of the Appendix to Protocol 1 of M A R P O L 73/78 entitled 'Probability of discharge'. This provides, inter alia, that In judging whether there is such a probability and whether the report should be made, the followingfactors, among others, should be taken into account: 1. the nature of the damage, failure or breakdown of the ship, machineryor equipment; and 2, sea and wind state and also trafficdensityin the area at the time and place of the incident. •
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The text then continues It is recognisedthat it wouldbe impracticableto lay down precise definitions of all types of incidents involvingprobable discharge which would warrant an obligation to report. Nevertheless,as a general guideline the master of the ship should make reports in cases of: I. damage, failureor breakdownwhich affectsthe safety of ships; examplesof such incidentsare collision,grounding,fire,
explosion, structural failure, flooding, cargo shifting; and 2. failureor breakdownof machineryor equipment which resultsin impairment of the safety of navigation; examples of such incidents are failure or breakdown of steering gear, propulsion plant, electricalgeneratingsystem,essentialshipbornenavigational aids. The difficulties for a master in exercising the judgement which is expected should not be underestimated. Although it would be impracticable to lay down precise definitions of when a report is required, it is precisely because of these difficulties that consideration should be given to strengthening the existing guidelines. For example, the present guidelines apparently do not distinguish between a vessel in difficulty far out at sea and one that is close to or approaching the neighbouring coastline. In the latter case there should perhaps be a mandatory obligation to report certain specified occurrences when a vessel is within a certain distance of the neighbouring coastline, irrespective of how probable or improbable the master may consider a discharge to be, thereby no longer leaving it solely to the master to exercise his judgment. It may also be necessary to reconsider whether the word 'probable', in the expression 'probable discharge', is still appropriate or whether other language is required which imposes an obligation to report when there is a lesser degree of certainty that a discharge will occur. It is considered here that 'possible discharge' or 'foreseeable discharge' might now be more appropriate terms. Adoption of either or both of these suggestions would assist in achieving what is one of the stated intentions of the M A R P O L 73/78 Guidelines for Reporting Incidents (Ante) namely that ' . . . coastal States and other interested parties (can) be informed without delay of any incident giving rise to pollution, or threat of pollution, of the marine e n v i r o n m e n t . . . ' . The conclusion here is that the master of the Braer should have notified the authorities earlier than he did. It was more than six hours after the initial problem that contact was made with the British authorities. The fact that the master at that stage expressed the view that he did not immediately require tug assistance was but one factor to be taken into account by those who then had the task of assessing the situation. Had the master been required to report as soon as he was within a certain distance of the Shetlands that his vessel's boiler could not be relit and that there was water in the diesel tanks, assistance could have been rendered earlier. Until initial contact is made by a vessel in trouble, the whole process of assessing the level of danger cannot begin. This requires local knowledge of the winds, tides and currents, places of particular environmental and commercial sensitivity, the local availability of tugs and salvage services and, indeed, the capabilities and restrictions applicable to the local emergency response plan. That will assist in deciding whether and to what extent a rescue plan should be put into motion, a decision for which those concerned must be given the opportunity as early as is reasonably possible--which means much earlier than is often the case, the Braer incident being no exception. Having failed to relight the boilers for so long and being aware of the fact that the vessel's diesel supplies were 363
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seriously contaminated with water, it should have been apparent, and perhaps was apparent, in the very early hours of 5 January that a main engine failure was at least a possibility. When added to the very rough conditions which prevailed and the vessel's position as it approached the Fair Isle Strait, there is a strong argument that the vessel's difficulties should have been reported at least two or perhaps three hours earlier than was the case.
Improvements to availability of salvage services The availability of and improvements to salvage services capable of dealing with major tanker incidents require reassessment. The form in which they are constituted, provided and financed or remunerated should then be discussed. There is generally a recognition that in many parts of the world the availability of salvage services is inadequate. In the case of the Braer, it took about one and a half hours to identify an available tug and for the Star Sirius to put to sea. That sort of response time will on occasions be unacceptable, depending on the circumstances and the amount of notice given by the vessel in trouble to the local authorities. The Star Sirius reached the Braer approximately one and a half hours before she finally grounded but was prevented from being more effective by the appalling weather conditions and the fact that the crew had already been taken off. The first matter for consideration is why the professional salvage industry is in decline and how this might be arrested. The International Salvage Union states that the reasons for this include the decrease in the number of incidents, rising costs, inadequate remuneration, the slowness with which arbitration awards are made and increasing competition from non-dedicated salvors. What is clear is that unless the financial rewards provide an adequate return on the capital invested there will be a continuing decrease in the number of dedicated salvage tugs available around the world. In turn, this will reduce the expertise for dealing with the complex and dangerous salvage operations required by oil tankers in trouble. It is not sufficient that matters are left to the chance availability of a casual salvor who may or may not have the required expertise and equipment to deal with a major incident. For example, passing a tow line to a vessel in difficulty with a non-dangerous cargo, in calm waters, in daylight is very different to dealing with an oil tanker that may already be on fire in rough seas, possibly at night. The latter requires highly professional, well-trained and experienced salvage crews working with the best equipment and salvage tugs available. If this cannot be provided by existing and prospective private salvage companies, whose rewards (whether from Lloyd's arbitrators, arbitrating pursuant to an LOF contract, or otherwise) are adequate, then alternatives will, of necessity, have to be found. In addition, salvors need to be remunerated not only for their services rendered to ship and cargo, but also in relation to their efforts to protect the environment. That, of course, has to a large extent been addressed in the International Convention on Salvage 1989 and in L O F 90 (Lloyd's Standard Form of Salvage Agreement No Cure-No Pay, 5/9/90 edition). To improve .the situation, there are a number of 364
alternatives ranging from a wholly government-funded service in each state to a wholly industry-funded service. In between there are many ways in which the two might combine, none of which need preclude the private sector salvor competing for business. Against the background of a serious decline in the dedicated salvage industry, it may be that central governments should provide a service dedicated to providing assistance to oil tankers in need. This is not an unreasonable suggestion given the increasing strength in developed countries of the environmental lobby. There would, ofcourse, be a substantial cost involved and it may be that some of the costs directly attributable to dealing with a particular incident could and should be passed on to those concerned. However, if one of the problems is the need to encourage earlier reporting of possible danger, and if one of the reasons for this being a problem at all may be the fear of the master and his owners about the costs involved, there may be an argument that such services should be provided free by the littoral state. Of course, producing a consistent international network requires overcoming the varying capabilities of different states to fund such a service, although this is not a reason for those who might be able to provide such a service not doing so. As far as EU Member States are concerned, for example, a jointly funded service could be considered. As an example of such action, the Amoco Cadiz incident in 1978 caused the French Government to provide considerable salvage resources at certain French ports. Another example is the South African Government, which has sponsored Pentow Marine to provide two of the world's largest salvage tugs on constant standby. An alternative is for there to be an oil industry financed and organized special force to deal with emergencies that would protect the home environment irrespective of the nationalities and corporate identities of those involved with the vessel and cargo which pose the threat. The oil industry in the USA has, for example, recently funded the Marine Spill Response Corporation (MSRC), a nonprofit-making organization designed to assist with cleanup operations after a spill. There is a high level of funding and the vessels available to the MSRC include 16 large offshore response vessels strategically located around the US coastline, each with a recovery capacity of 10000 barrels a day. However, this deals with the curative, or clean-up, phase. It is considered that oil companies, and others involved in the transportation of large and valuable cargoes of oil by sea, could in the same way fund a fleet of salvage tugs. However it is done, whether by government, industry, private enterprise or any combination of the three, pollution prevention requires the availability of modern, well-equipped and strategically placed salvage tugs available to respond promptly in any area or at any time. At present, this is not the case. Finally, there is the OPRC Conference Resolution 8 entitled 'Improving Salvage Services' which, in the customary parlance of such documents, recognizes 'the need to ensure that sufficient salvage is available on a world-wide basis', bears in mind 'that there are indications that a considerable percentage of suitable salvage capacity may no longer be available for salvage purposes',
Volume29/Numbers6-12 records an awareness 'of the need for sufficient salvage capacity along the main shipping routes of international traffic of oil and other harmful substances', requests, inter alia, that 'Member States of the Organisation review the salvage capacity available to them' and further requests 'the Secretary-General of the Organisation to consult the International Salvage Union, salvors, insurers, shipowners and the oil industry on the present and future availability of salvage capacity and to report his findings to the Marine Environment Protection Committee of the Organisation'. At present, the Secretary-General has yet to report to the MEPC and will not do so until the OPRC comes into force. It is to be hoped that when he does report there will be some indication that the need for improved salvage capacity to deal with oil pollution incidents is being constructively addressed by the international community. Continoency and response plannin# The authorities in the Shetlands have acquired from the Braer incident experience of how to deal with a major emergency of this nature. There was already due to be held in Lerwick, in late March to early April 1993, a conference entitled 'Managing the Marine Environment: the Shetlands Standard'. A workshop session on the Braer incident was then added to the programme. The preconference literature posed such questions as 'What lessons can be learned for emergency response and planning, and the local control of this activity?' 'What structure ensures the best possible interaction and coordination between all the bodies having an input-statutory and non-statutory--to the response?' 'How can objective, accurate information be disseminated quickly to the local population and further afield, to keep everyone properly informed?' The prospect of an oil spill in the Shetland Isles had long been anticipated and planned for given the loading facilities at Sullom Voe and the number of laden vessels that pass to the south of the islands through the Fair Isle Strait. The consultation group SOTEAG (Shetland Oil Terminal Environmental Action Group) was formed in the first years of the Shetlands' oil activities. Prior to the Braer, there had been only one major incident when the Esso Bernicia ran aground at Sullom Voe in 1981. Clearly, some areas of coastline around the world are more vulnerable than others, due to the amount of tanker traffic that passes nearby, and for some areas the threat is potentially and relatively more serious in light of commercial, industrial and environmental factors. However, all ports, regions or countries should have in place a properly planned and well rehearsed oil pollution emergency response plan. By virtue of bilateral, multilateral and international agreements, help during incidents may, and it is considered should, be available from other states. At the international level, the OPRC requires, by Article 6 entitled 'National and Regional Systems for Preparedness and Response', that all signatory states 'shall establish a national system for responding promptly and effectively to oil pollution incidents' and specifically requires that each state 'within its capabilities' (which is an important caveat for it recognizes that the resources and facilities of some countries are less than those of
others) shall, inter alia: establish a minimum level of prepositioned oil spill combating equipment; establish a programme of exercises for oil pollution response organizations; carry out training of relevant personnel; develop continuously available plans and communications capabilities; and have the ability to co-ordinate the response to an oil pollution incident I-OPRC Art. 6(2)]. Further, by Article 10, there is a requirement that states shall 'endeavour to conclude bilateral or multilateral agreements for oil pollution preparedness and response' thus ensuring that, at the global level, national and regional emergency response plans interlock and are properly co-ordinated. Further, clear guidelines have been prepared by the MEPC dealing with contingency planning at the international, national and port/terminal level. In addition to planning, there needs to be regular training and exercising of those involved to test that the plans work. One aspect of crucial importance will be the ability to communicate effectively right from the start, both in terms of receiving information and also in terms of disseminating it. The ability to receive accurate and reliable information about the incident or potential incident is essential to the ability to reach correct decisions about what should be done. A pollution incident produces great pressures on all local services and facilities--not only communications facilities, but also, for example, the local transport system, hotel accommodation, the local police force and the emergency services. Careful media relations are required, not least because of concern among local residents, particularly those whose livelihood is suddenly facing the prospect of temporary if not terminal decline. Environmentalists and lawyers will arrive to represent and help their respective interests, These and many other factors and interests will need to be planned and cared for during the incident. Thus proper planning and preparation are required. The Braer incident demonstrated less the need for an emergency response plan, but rather of how a well prepared plan needed only some fine tuning after the event. After the marine environment conference in Lerwick which followed this incident, one item on the agenda for action that emerged from the Braer workshop was that Shetland expertise in contingency planning and responding to major marine accidents should be actively promoted both nationally and internationally. The authorities in the Shetland Islands believe that they have something to offer, having encounterd a genuine emergency to test and improve their systems. Vessel structure: anchors systems The vessel grounded with her anchors still stowed, although, in the stormy conditions prevailing at the time, there must be some doubt as to whether using them would have been effective in arresting her drift towards grounding. The anchors could not be released from the bridge and in the heavy weather at the time it was not safe to send a party forward to release them. As it is often the case that vessels find themselves without power in heavy weather, there is a need to fit systems on tankers by which anchors can be deployed from the safety of the bridge. Indeed, by way of example, 365
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many large container vessels operating on the North Atlantic trade have the ability to let go and recover anchors from the bridge, as do some anchor-handling tug supply boats. Whilst it may be that in rough weather it would not, in any event, be possible to deploy anchors from the bridge, the fact is that accidents do not always occur in rough seas. An additional comment in relation to the Braer is that without any crew on board it was apparently impossible to secure a towing line from the supply boat that came to her aid. Clearly, in the prevailing conditions and in close proximity to the shore there was no way that the tug could safely put a working party on board. The provisions of IMO Resolution A535 (13) entitled 'Recommendations on Emergency Towing Requirements for Tankers', which was adopted in late 1983 as a consequence of the Amoco Cadiz incident, provide certain requirements for the fitting of emergency towing positions at the bow and stern of tankers. However, these requirements, even if implemented, require there to be on board a working party able to handle towing lines and equipment. The inability of the Star Sirius to connect a towing line to the Braer, without the assistance of a working party on board, suggests that there is a need for the current IMO recommendations to be reviewed with a view to systems being put in place which would enable a tug to render assistance to a tanker without there being crew on board. Without power, unable to let go her anchors and further unable to secure a towing line, the Braer could not be manouevred and thus ran aground. Action taken: appropriate to circumstances
During a serious oil spill, those responsible for dealing with it will be under enormous pressure to do something, or at least to be seen to be doing something. That pressure will come from governments, from local industrial and commercial interests, from environmentalists and from the media. As rapid action is necessary, a well prepared and well rehearsed response plan will be needed to avoid those responsible being pressured or perhaps even panicked into making hasty and incorrect decisions. For example, in the case of the Braer there was an unusual combination of circumstances, namely the spilling of large amounts of a light crude oil in very heavy seas and with strong winds prevailing. The rough weather conditions, which continued for some days after the vessel grounded and began leaking oil, largely provided the clean-up operation on the shores of the Shetlands. Despite this, in the days following the spill, aircraft sprayed dispersants over the leaking oil. Evidence subsequently given to the Donaldson Inquiry indicated that the 120 t of chemical dispersant used dealt only with about 2000 t of the leaking oil, a very small percentage of the spill. It is questioned whether in this particular case spraying was worth the effort and expense. In addition, the local population became seriously concerned about the potential effect on their health of spraying chemicals in high winds, particularly when already worried about the health effects of the oil aerosols being blown across the islands. It is not considered here whether the decision to spray on this occasion was or was not correct, but this is an example of how pressure may be brought to do 366
something which, having regard to the particular circumstances, will provide little or no assistance and may, in fact, create additional problems.
Final Discussion It is considered here that lessons might be learned from the case of the Braer--whether by governments, by the IMO or by those responsible for planning and implementing emergency response plans. Generally, the international legislation now in force, or shortly to come into force, which is designed to prevent oil pollution incidents in the marine environment and to assist those involved to cope with them when they do occur, represents a substantial achievement over the years by those concerned with its development. Whatever is achieved in the future will, of course, need to have regard to reality and to recognize the different resources available to developed and developing countries. Further, the right balance will need to be struck--in this instance between the operational and commercial interests of the owners and operators of tankers on the one hand and, on the other, the commercial and environmental interests that will be affected if early and appropriate action is not taken. Every state does, of course, have a choice either to act alone or to take part in international negotiation and agreement which will, inevitably, produce a compromise. The fact that the USA chose not to ratify the Civil Liability Convention (The International Convention on Civil Liability for Oil Pollution Damage 1969) and the Fund Convention (The International Convention for the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971) in favour of their own OPA 90 (United States' Oil Pollution Act 1990) is considered unfortunate as this now means that for tankers trading to and from the USA their owners and operators have to have regard to a whole set of different rules and regulations (to say nothing of the potential liability in damages) to those that apply in many other parts of the world. Of course, the USA is signatory to some of the relevant international conventions and has already ratified the OPRC. However, the greater the number of countries that choose to act alone, the more complex will be the rules and regulations with which tanker operators have to cope.
Conclusions The present paper takes the view that the only sensible approach to this subject is to continue to seek international agreement with a view to there being a coherent set of rules and regulations that are both consistent worldwide and realistic in terms of what can be expected of those who have to comply with them. The alternative, potentially at least, is an ever-increasing burden being placed on owners as they try to comply with differing requirements depending on where their vessels are trading. It was precisely having regard to the need to avoid such a situation developing that, in adopting the general principles for ship reporting systems and ship reporting requirements, those concerned with IMO
Volume29/Numbers6-12 Resolution A.648(16) formally recognized 'that such different procedures and reporting formats could cause confusion to Masters of ships moving from one area to another covered by a different ship reporting system'. The danger is that if the requirements become too complex and too burdensome, they will also become counterproductive.
Addendum The above paper was prepared prior to the publishing of the report of Lord Donaldson's Inquiry (April 1994). It is therefore now possible to summarize the recommendations of Donaldson in relation to the lessons learned from the Braer incident.
The need for improved internationally agreed rules requiring early reporting of difficulties being experienced by laden tankers Identification and reporting is dealt with by Donaldson in Chapter 15. In particular, Donaldson (p. 241, para. 15.76) recommends that existing MARPOL reporting requirements should be strengthened to include mandatory immediate reporting to HM Coastguard (and its equivalents in other countries) of certain specified occurrences, including casualties, such as collision or fire, failure of propulsion or steering gear, hazards to navigation and any problem which could cause pollution. 'Ideally' this mandatory reporting requirement would be effective within territorial waters, plus a further band of about 12 nautical miles, except where this would impinge on the territorial waters of another state. The need to arrest the decline in the number of professional salvage companies Chapter 20 of Donaldson is entitled 'Dealing with emergencies---emergencytowing and salvage'. Paragraph 20.73 on p. 304 identifies the problem of salvage capacity. Although welcoming the recommendations of the Salvage Working Group which reported in February 1993, Donaldson recommends that salvage should remain a private sector service but with, as necessary, government subsidies being paid. The report recommends, inter alia, that a range of tugs of different pulling powers should be maintained, that small tugs with lesser pulling power should assist large vessels until a more powerful tug arrives and that all tugs should be multifunctional to allow them to combine salvage with other work. The value of well planned and well rehearsed emergency response plans Recommendation 93 of Donaldson (para. 23.133, p. 399) summarizes the Inquiry's recommendations concerning contingency planning. Other recommendations include that there should be a database of equipment available to harbour authorities, governments and other states (see para. 21.69, p. 334). The need for better anchoring systems The two main proposals referred to in this paper, i.e. that it should be possible for anchors to be let go from the bridge and that systems should be employed on board
tankers enabling tugs to render assistance without there being a crew on-board, have not been specifically addressed by Donaldson. The latter recommendation has not received a mention; with regard to the former, Donaldson has merely endorsed the proposal of the Marine Accident Investigation Branch that the UK Department of Trade should carry out research into the feasibility of anchoring systems which would enable anchors to be let go when a ship is without power.
The need for whatever action is taken to be appropriate to the circumstances of each particular incident This general proposal is not, perhaps unsurprisingly, dealt with as such by Donaldson. However, the spraying of dispersants is dealt with in some detail in Chapter 21, entitled 'Cleaning up Spills'; see particularly para. 21.49 et seq. Improved standards amongst classification societies At para. 7.33 on p. 77, Donaldson recommends that underwriters' organizations should participate in the Quality System Certification Scheme run by the International Association of Classification Societies. Donaldson (para. 7.37, p. 78) recommends that the UK Government should work through the IMO to press for a review of the IMO guidelines and minimum standards for classification societies with a view to improving them as necessary and to developing, as a matter of urgency, detailed specifications on precise survey and certification functions delegated to such organizations. The UK Government should also work with the IMO for swift implementation of minimum standards for all work delegated by Flag States to classification societies. Classification societies which do not meet these international standards should not be granted international recognition. Strengthening of Port State inspections Chapter 11 of Donaldson contains a detailed evaluation of existing Port State inspections and several proposals for improvements. The principal recommendation is designed to increase the perceived and actual rate of detection. A system of self-targeting is envisaged which should be introduced through the region of the Paris Memorandum of Understanding of 1982 ('the Paris MOU'). The foundation of this scheme would be a shipborne record of the results of Paris M O U inspections contained in a log book, coupled with a new notice requirement. The log book would contain records of the extent and nature of the inspections and a detailed description of the deficiencies found, if any. There then follows a detailed description of the method of selftargeting. It is also recommended that the UK Government should establish occasional inspections of all ships entering a particular UK port in a particular period. The UK Government should encourage its Paris MOU partners to co-operate in extending the policy of such saturation inspections to the whole of the region of the Paris MOU. The ultimate sanction for failing to operate the self-targeting system or for persistently operating substandard ships would be a denial of the right to load and discharge. 367
Pergamon
0025-326X(94)00151-0
Marine Pollution Bulletin, Vol. 29, Nos 6-12, pp. 361-367, 1994 Elsevier Science Ltd Printed in Great Britain 0025-326X/94 $7.00 + 0.00
The Braer Tanker Incident: Some Lessons From the Shetland Islands NICHOLAS EDGELL Norton Rose, Blackfriars House, P.O. Box 570, 19 New Bridge Street, London EC4V 6DH, UK
incidents in the widest context, including leakages from shore-based facilities, vessels that illegally pump out ballast at sea after crude oil washing, pollution caused by offshore installations as well as the major tanker incidents. However, the major marine incidents are responsible for only a small percentage of the oil that is spilled, pumped or leaked into the world's seas every day, although major tanker incidents are dramatic, high profile and newsworthy events. This paper discusses the oil pollution resulting from such incidents, more particularly the incident of the Braer, from the viewpoint of international legislation. Here, legislation is taken in its widest context, encompassing any laws, rules, regulations or agreements as appropriate. Legislation related to oil pollution operates essentially on three fronts: preventive, curative (or clean-up), and in terms of liability and compensation. In essence, the more successful the preventive phase, the less the need for curative measures, but the clean-up phase receives most attention whenever a major spill occurs. In addition, although the efforts involved in oil pollution legislation are directed towards how spills will be cleaned up, and who will pay for it, the present emphasis is on how to prevent spills occurring. On 4 January and the early hours of 5 January 1993, the Braer was on passage from Norway to Canada and routed to pass through the Fair Isle Strait, a channel 22 miles wide between the Orkney and Shetland Islands and Oil pollution legislation, particularly in relation to the regularly used by laden oil tankers. The cargo included marine environment, has been a growth industry over the about 84 500 t of light crude oil, 1700 t of heavy fuel oil past 25 years or so for lawyers, diplomats and many and some 125 t of diesel oil. The 17-year-old Liberian others who have been involved in negotiating the myriad registered vessel, with a crew of 34, grounded on the of bilateral, multilateral and international agreements, southern shore of the Shetlands, at Garth's Ness shortly conventions and laws. It is considered appropriate that before 1100 hours on 5 January. the subject of oil pollution in the marine environment The formal enquiries into the accident have taken the should be treated not only as a matter of national form, firstly, of an investigation by the Marine Accident importance, but also international importance. The Investigation Branch (MAIB) of the UK Department of demand for oil and oil products and their transport by Transport. Broadly, their task has been to investigate the tankers at sea involves an inherent danger of spillage on a causes of the accident, the seaworthiness of the vessel, the major scale. In the period December 1992 to early June competence of the crew and the action taken before and 1993 there were, for example, three major incidents on the after the grounding. Secondly, the UK Secretary of State West European coastline: the Aegean Captain at the port for Transport appointed Lord Donaldson to set up a of La Corufia in northern Spain in December 1992, the public enquiry with its terms of reference 'to advise on Braer incident in January 1993 and the collision involving whether any further measures are appropriate and the British Trent off the port of Antwerp at the beginning feasible to protect the UK coastline from pollution from of June 1993. merchant vessels'. The findings of the MAIB report and Much of what has been agreed internationally or is the Lord Donaldson's inquiry were made public in April 1994 subject of national laws is directed towards oil pollution and are discussed in the Addendum to this paper. On 5 January 1993 the tanker Braer grounded on the southern shore of the Shetland Islands. The vessel was carrying a cargo of about 84 500 t of light crude oil. The incident occurred during severe storms in a remote area of great ecological importance. Because of the bad weather it was not possible to salvage the vessel or any part of her bunkers and cargo. The circumstances which led to this accident are briefly reviewed and lessons that might be learned from this incident are suggested. It is argued that the only viable means of minimizing tanker incidents and providing compensation for those who suffer loss when they do occur is through an internationally adopted framework of rules that have regard to operational and commercial considerations as well as to environmental issues, and which can be enforced to a consistent standard throughout the world. The following lessons can be learnt from this incident: 1. the need for improved internationally agreed rules requiring early reporting of difficulties being experienced by laden tankers; 2. the need to arrest the decrease in the number of professional salvage companies; 3. the value of well planned and well rehearsed emergency response plans; 4. the need for better anchoring systems; and 5. the need for whatever action is taken to be appropriate to the circumstances of each particular incident.
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The Cause of the Braer Incident Late on 4 January 1993 the duty engineer shut down the boiler that heated the vessel's bunkers for routine maintenance. Subsequent attempts to relight the boiler using the vessel's diesel oil supply failed and shortly before midnight, as the heavy fuel oil cooled, the main engine was switched over to diesel. At about this time a substantial amount of water was found to have entered the diesel tanks as the result of heavy pipes stowed on deck having become loose in the rough weather and damaging the ventilation pipes installed to release gases from the diesel tanks. Unsuccessful efforts to relight the boiler and to drain the diesel tank occurred while the vessel continued to encounter heavy seas. The chief engineer, summoned at 0230 hours on 5 January, at 0430 hours recommended the ship's master to seek a place of safety where, in quieter seas, the water could be separated from the diesel. Shortly after 0430 hours the vessel altered course to the south, heading for the Moray Firth, a protected bay on Scotland's east coast. Unfortunately, the main engine then stopped and the generators failed, presumably no longer able to cope with the contaminated diesel oil. The vessel was then blown by heavy winds northwards towards Sumburgh Head, about 10 miles away at the southern extremity of the Shetland Islands. By then, if not before, the vessel was in urgent need of assistance, having regard both to the very severe weather and also her proximity to the neighbouring land mass. This was about six hours since the initial problem had arisen, during which time no contact had been made with the British authorities, and despite the Braer's proximity to the Shetlands, it was to be a further five hours before a tug would reach her. The ship's master's initial report at about 0500 hours considered that the vessel would drift clear of land and out into the North Sea and that he did not immediately require assistance. Nevertheless, shortly after 0600 hours the authorities in Lerwick had located the Star Sirius, a tug supply vessel, rather than a dedicated salvage tug, which reached the vessel at about 0945 hours, by which time the crew of the Braer had been lifted off by helicopter. The very rough conditions prevented a party being put on board or a tow line secured. At about 1030 hours one of the vessel's crew was put back on board to release the vessel's anchors or to secure a tow line from the tug. As this was not possible, he was lifted off again and, shortly before 1100 hours, with her anchors still stowed, the vessel grounded on the rocks of Quendale Bay. The incident was at first regarded as potentially an environmental disaster comparable with the Torrey Canyon, which spilled about 30 000 t of crude oil off the Cornish coast in 1967. In addition to concern for the large stocks of farmed salmon in the area and for the local offshore fishing industry, there was considerable concern for the wildlife of the area. The Shetland Islands are a particularly important area for cliff-nesting birds and support an important colony of about 700 otters. The potential risk to human health, which subsequently became a major issue, was not initially considered important. However, although some environmental damage did occur, it is now generally acknowledged that this was not as serious a disaster as was at first predicted. 362
Indeed, about three weeks after the grounding, the Joint Response Centre released a press statement to the effect that the wreck no longer presented 'a serious pollution threat'. In essence, the storms which had partly caused the accident were subsequently responsible for dispersing the vessel's bunkers and oil cargo.
Lessons to be Learned from the Incident Internationally agreed practice There is a need for tighter internationally agreed rules about the time at which the master of a laden tanker is required to report that the vessel is in difficulty such that time is not lost. Although easier with hindsight, decisionmaking in perhaps rough seas, at night, when a problem has occurred is not easy. A master has the dilemma: if he reports unnecessarily eady that the vessel is in difficulties, he draws unwelcome attention to the vessel (which may, in fact, be perfectly well maintained) and also to h e r owning company, perhaps he incurs costs for the owners and may be considered as alarmist; if he delays, he increases the risk of the vessel being the cause of a major pollution incident, endangering the safety of personnel and the subsequent judgment that he should have reported his difficulties earlier. There are two important pieces of international legislation relevant to this situation. Firstly, the 1973 M A R P O L Convention as amended by the 1978 Protocol (MARPOL 73/78) (the International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 relating thereto). Article 8, entitled 'Reports on incidents involving harmful substances' provides, inter alia, that A report of an incident shall be made without delay to the fullest extent possiblein accordancewiththe provisionsofProtocol 1 to the present Convention.
AS defined in Article 2, 'incident' means 'an event involving actual or probable discharge into the sea of a harmful substance, or effluents containing such a substance'. Protocol 1 provides, inter alia, that the report shall be made when the incident involves discharge or probable discharge of o i l . . , resulting from damage to the ship or its equipment or for the purpose of securing the safety of a ship or saving life at sea [Art. 2 para. (1)(a)]
The contents of the report to include I. the identity of the ship(s) involved, 2. the time, type and location of the incident, 3. the quantity and type of harmful substance involved and 4. assistance and salvage measures required (Protocol 1 Article III). The expression 'damage to the ship or its equipment' is amplified by the relevant part of Resolution A.648(16) (adopted on 19 October 1989) which is in terms Recognising further that an incident involving damage, failure or breakdown of a ship, its machinery or equipment could give rise to a significant threat of pollution to coastlines or related interests...
The Convention further sets out, in paragraph 1 of the Annex to the Protocol, the General Principles with which,
Volume 29/Numbers 6-12 so far as is practicable, ship reporting systems and reporting requirements should comply, including special reports from ships concerningdefects or deficiencies with respect to their hull,machinery,equipment or manning, or coocerning other limitations which could adversely affect navigation and for specialreportsconcerningincidentsof actual or probablemarine pollution... (Annexto Protocol 1 para. 1.1 sub-para..15) •
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and in paragraph 3, under the heading Guidelines for Reporting Incidents Involving Harmful Substances and/or Marine Pollutants that The intent of these Guidelines and those contained in the appendix is to enable coastal States and other interested parties to be informed without delay of any incident giving rise to pollution, or threat of pollution,of the marine environment, as welt as of assistance and salvagemeasures, so that appropriate action may be taken. (Annexto Protocol 1 para. 3.1) The second relevant piece of legislation is the International Convention on Oil Pollution Preparedness, Response and Co-operation 1990 (OPRC). This is the latest International Maritime Organisation (IMO) umbrella convention, but has yet to come into force, lacking the required ratification by 15 states. By mid-1993 10 states had ratified (Australia, Egypt, Finland, France, Iceland, Nigeria, Pakistan, Seychelles, Sweden and the USA). Article 3 requires that all vessels flying the flag of a signatory state 'shall have on board a shipboard oil pollution emergency plan as required by and in acordance with the provisions adopted by the Organisation for this purpose' and, by Article 4, that masters of vessels shall 'report without delay any event on their s h i p . . , involving a discharge or probable discharge of o i l . . . ' . The provisions adopted by the I M O in relation to shipboard oil pollution emergency plans for the purposes of Article 3 can now be found in Regulation 26 of Annex I of M A R P O L 73/78, which came into force on 4 April 1993 after being adopted by the Marine Environment Protection Committee (MEPC). The requirement to make a report is, therefore, that there is involved an 'actual or probable discharge' of oil. Where there has been an actual discharge, the position is clear: a report must be made. However, where a defect, deficiency or damage to hull, machinery or equipment, but no actual discharge has arisen, it is left to the judgment of the master (possibly in consultation with the owners) as to whether a discharge is probable. This, it is suggested, means that, with regard to all of the circumstances, a discharge is something which is likely or can reasonably be expected to occur. The relevant circumstances are addressed in paragraph 3.4 of the Appendix to Protocol 1 of M A R P O L 73/78 entitled 'Probability of discharge'. This provides, inter alia, that In judging whether there is such a probability and whether the report should be made, the followingfactors, among others, should be taken into account: 1. the nature of the damage, failure or breakdown of the ship, machineryor equipment; and 2, sea and wind state and also trafficdensityin the area at the time and place of the incident. •
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The text then continues It is recognisedthat it wouldbe impracticableto lay down precise definitions of all types of incidents involvingprobable discharge which would warrant an obligation to report. Nevertheless,as a general guideline the master of the ship should make reports in cases of: I. damage, failureor breakdownwhich affectsthe safety of ships; examplesof such incidentsare collision,grounding,fire,
explosion, structural failure, flooding, cargo shifting; and 2. failureor breakdownof machineryor equipment which resultsin impairment of the safety of navigation; examples of such incidents are failure or breakdown of steering gear, propulsion plant, electricalgeneratingsystem,essentialshipbornenavigational aids. The difficulties for a master in exercising the judgement which is expected should not be underestimated. Although it would be impracticable to lay down precise definitions of when a report is required, it is precisely because of these difficulties that consideration should be given to strengthening the existing guidelines. For example, the present guidelines apparently do not distinguish between a vessel in difficulty far out at sea and one that is close to or approaching the neighbouring coastline. In the latter case there should perhaps be a mandatory obligation to report certain specified occurrences when a vessel is within a certain distance of the neighbouring coastline, irrespective of how probable or improbable the master may consider a discharge to be, thereby no longer leaving it solely to the master to exercise his judgment. It may also be necessary to reconsider whether the word 'probable', in the expression 'probable discharge', is still appropriate or whether other language is required which imposes an obligation to report when there is a lesser degree of certainty that a discharge will occur. It is considered here that 'possible discharge' or 'foreseeable discharge' might now be more appropriate terms. Adoption of either or both of these suggestions would assist in achieving what is one of the stated intentions of the M A R P O L 73/78 Guidelines for Reporting Incidents (Ante) namely that ' . . . coastal States and other interested parties (can) be informed without delay of any incident giving rise to pollution, or threat of pollution, of the marine e n v i r o n m e n t . . . ' . The conclusion here is that the master of the Braer should have notified the authorities earlier than he did. It was more than six hours after the initial problem that contact was made with the British authorities. The fact that the master at that stage expressed the view that he did not immediately require tug assistance was but one factor to be taken into account by those who then had the task of assessing the situation. Had the master been required to report as soon as he was within a certain distance of the Shetlands that his vessel's boiler could not be relit and that there was water in the diesel tanks, assistance could have been rendered earlier. Until initial contact is made by a vessel in trouble, the whole process of assessing the level of danger cannot begin. This requires local knowledge of the winds, tides and currents, places of particular environmental and commercial sensitivity, the local availability of tugs and salvage services and, indeed, the capabilities and restrictions applicable to the local emergency response plan. That will assist in deciding whether and to what extent a rescue plan should be put into motion, a decision for which those concerned must be given the opportunity as early as is reasonably possible--which means much earlier than is often the case, the Braer incident being no exception. Having failed to relight the boilers for so long and being aware of the fact that the vessel's diesel supplies were 363
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seriously contaminated with water, it should have been apparent, and perhaps was apparent, in the very early hours of 5 January that a main engine failure was at least a possibility. When added to the very rough conditions which prevailed and the vessel's position as it approached the Fair Isle Strait, there is a strong argument that the vessel's difficulties should have been reported at least two or perhaps three hours earlier than was the case.
Improvements to availability of salvage services The availability of and improvements to salvage services capable of dealing with major tanker incidents require reassessment. The form in which they are constituted, provided and financed or remunerated should then be discussed. There is generally a recognition that in many parts of the world the availability of salvage services is inadequate. In the case of the Braer, it took about one and a half hours to identify an available tug and for the Star Sirius to put to sea. That sort of response time will on occasions be unacceptable, depending on the circumstances and the amount of notice given by the vessel in trouble to the local authorities. The Star Sirius reached the Braer approximately one and a half hours before she finally grounded but was prevented from being more effective by the appalling weather conditions and the fact that the crew had already been taken off. The first matter for consideration is why the professional salvage industry is in decline and how this might be arrested. The International Salvage Union states that the reasons for this include the decrease in the number of incidents, rising costs, inadequate remuneration, the slowness with which arbitration awards are made and increasing competition from non-dedicated salvors. What is clear is that unless the financial rewards provide an adequate return on the capital invested there will be a continuing decrease in the number of dedicated salvage tugs available around the world. In turn, this will reduce the expertise for dealing with the complex and dangerous salvage operations required by oil tankers in trouble. It is not sufficient that matters are left to the chance availability of a casual salvor who may or may not have the required expertise and equipment to deal with a major incident. For example, passing a tow line to a vessel in difficulty with a non-dangerous cargo, in calm waters, in daylight is very different to dealing with an oil tanker that may already be on fire in rough seas, possibly at night. The latter requires highly professional, well-trained and experienced salvage crews working with the best equipment and salvage tugs available. If this cannot be provided by existing and prospective private salvage companies, whose rewards (whether from Lloyd's arbitrators, arbitrating pursuant to an LOF contract, or otherwise) are adequate, then alternatives will, of necessity, have to be found. In addition, salvors need to be remunerated not only for their services rendered to ship and cargo, but also in relation to their efforts to protect the environment. That, of course, has to a large extent been addressed in the International Convention on Salvage 1989 and in L O F 90 (Lloyd's Standard Form of Salvage Agreement No Cure-No Pay, 5/9/90 edition). To improve .the situation, there are a number of 364
alternatives ranging from a wholly government-funded service in each state to a wholly industry-funded service. In between there are many ways in which the two might combine, none of which need preclude the private sector salvor competing for business. Against the background of a serious decline in the dedicated salvage industry, it may be that central governments should provide a service dedicated to providing assistance to oil tankers in need. This is not an unreasonable suggestion given the increasing strength in developed countries of the environmental lobby. There would, ofcourse, be a substantial cost involved and it may be that some of the costs directly attributable to dealing with a particular incident could and should be passed on to those concerned. However, if one of the problems is the need to encourage earlier reporting of possible danger, and if one of the reasons for this being a problem at all may be the fear of the master and his owners about the costs involved, there may be an argument that such services should be provided free by the littoral state. Of course, producing a consistent international network requires overcoming the varying capabilities of different states to fund such a service, although this is not a reason for those who might be able to provide such a service not doing so. As far as EU Member States are concerned, for example, a jointly funded service could be considered. As an example of such action, the Amoco Cadiz incident in 1978 caused the French Government to provide considerable salvage resources at certain French ports. Another example is the South African Government, which has sponsored Pentow Marine to provide two of the world's largest salvage tugs on constant standby. An alternative is for there to be an oil industry financed and organized special force to deal with emergencies that would protect the home environment irrespective of the nationalities and corporate identities of those involved with the vessel and cargo which pose the threat. The oil industry in the USA has, for example, recently funded the Marine Spill Response Corporation (MSRC), a nonprofit-making organization designed to assist with cleanup operations after a spill. There is a high level of funding and the vessels available to the MSRC include 16 large offshore response vessels strategically located around the US coastline, each with a recovery capacity of 10000 barrels a day. However, this deals with the curative, or clean-up, phase. It is considered that oil companies, and others involved in the transportation of large and valuable cargoes of oil by sea, could in the same way fund a fleet of salvage tugs. However it is done, whether by government, industry, private enterprise or any combination of the three, pollution prevention requires the availability of modern, well-equipped and strategically placed salvage tugs available to respond promptly in any area or at any time. At present, this is not the case. Finally, there is the OPRC Conference Resolution 8 entitled 'Improving Salvage Services' which, in the customary parlance of such documents, recognizes 'the need to ensure that sufficient salvage is available on a world-wide basis', bears in mind 'that there are indications that a considerable percentage of suitable salvage capacity may no longer be available for salvage purposes',
Volume29/Numbers6-12 records an awareness 'of the need for sufficient salvage capacity along the main shipping routes of international traffic of oil and other harmful substances', requests, inter alia, that 'Member States of the Organisation review the salvage capacity available to them' and further requests 'the Secretary-General of the Organisation to consult the International Salvage Union, salvors, insurers, shipowners and the oil industry on the present and future availability of salvage capacity and to report his findings to the Marine Environment Protection Committee of the Organisation'. At present, the Secretary-General has yet to report to the MEPC and will not do so until the OPRC comes into force. It is to be hoped that when he does report there will be some indication that the need for improved salvage capacity to deal with oil pollution incidents is being constructively addressed by the international community. Continoency and response plannin# The authorities in the Shetlands have acquired from the Braer incident experience of how to deal with a major emergency of this nature. There was already due to be held in Lerwick, in late March to early April 1993, a conference entitled 'Managing the Marine Environment: the Shetlands Standard'. A workshop session on the Braer incident was then added to the programme. The preconference literature posed such questions as 'What lessons can be learned for emergency response and planning, and the local control of this activity?' 'What structure ensures the best possible interaction and coordination between all the bodies having an input-statutory and non-statutory--to the response?' 'How can objective, accurate information be disseminated quickly to the local population and further afield, to keep everyone properly informed?' The prospect of an oil spill in the Shetland Isles had long been anticipated and planned for given the loading facilities at Sullom Voe and the number of laden vessels that pass to the south of the islands through the Fair Isle Strait. The consultation group SOTEAG (Shetland Oil Terminal Environmental Action Group) was formed in the first years of the Shetlands' oil activities. Prior to the Braer, there had been only one major incident when the Esso Bernicia ran aground at Sullom Voe in 1981. Clearly, some areas of coastline around the world are more vulnerable than others, due to the amount of tanker traffic that passes nearby, and for some areas the threat is potentially and relatively more serious in light of commercial, industrial and environmental factors. However, all ports, regions or countries should have in place a properly planned and well rehearsed oil pollution emergency response plan. By virtue of bilateral, multilateral and international agreements, help during incidents may, and it is considered should, be available from other states. At the international level, the OPRC requires, by Article 6 entitled 'National and Regional Systems for Preparedness and Response', that all signatory states 'shall establish a national system for responding promptly and effectively to oil pollution incidents' and specifically requires that each state 'within its capabilities' (which is an important caveat for it recognizes that the resources and facilities of some countries are less than those of
others) shall, inter alia: establish a minimum level of prepositioned oil spill combating equipment; establish a programme of exercises for oil pollution response organizations; carry out training of relevant personnel; develop continuously available plans and communications capabilities; and have the ability to co-ordinate the response to an oil pollution incident I-OPRC Art. 6(2)]. Further, by Article 10, there is a requirement that states shall 'endeavour to conclude bilateral or multilateral agreements for oil pollution preparedness and response' thus ensuring that, at the global level, national and regional emergency response plans interlock and are properly co-ordinated. Further, clear guidelines have been prepared by the MEPC dealing with contingency planning at the international, national and port/terminal level. In addition to planning, there needs to be regular training and exercising of those involved to test that the plans work. One aspect of crucial importance will be the ability to communicate effectively right from the start, both in terms of receiving information and also in terms of disseminating it. The ability to receive accurate and reliable information about the incident or potential incident is essential to the ability to reach correct decisions about what should be done. A pollution incident produces great pressures on all local services and facilities--not only communications facilities, but also, for example, the local transport system, hotel accommodation, the local police force and the emergency services. Careful media relations are required, not least because of concern among local residents, particularly those whose livelihood is suddenly facing the prospect of temporary if not terminal decline. Environmentalists and lawyers will arrive to represent and help their respective interests, These and many other factors and interests will need to be planned and cared for during the incident. Thus proper planning and preparation are required. The Braer incident demonstrated less the need for an emergency response plan, but rather of how a well prepared plan needed only some fine tuning after the event. After the marine environment conference in Lerwick which followed this incident, one item on the agenda for action that emerged from the Braer workshop was that Shetland expertise in contingency planning and responding to major marine accidents should be actively promoted both nationally and internationally. The authorities in the Shetland Islands believe that they have something to offer, having encounterd a genuine emergency to test and improve their systems. Vessel structure: anchors systems The vessel grounded with her anchors still stowed, although, in the stormy conditions prevailing at the time, there must be some doubt as to whether using them would have been effective in arresting her drift towards grounding. The anchors could not be released from the bridge and in the heavy weather at the time it was not safe to send a party forward to release them. As it is often the case that vessels find themselves without power in heavy weather, there is a need to fit systems on tankers by which anchors can be deployed from the safety of the bridge. Indeed, by way of example, 365
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many large container vessels operating on the North Atlantic trade have the ability to let go and recover anchors from the bridge, as do some anchor-handling tug supply boats. Whilst it may be that in rough weather it would not, in any event, be possible to deploy anchors from the bridge, the fact is that accidents do not always occur in rough seas. An additional comment in relation to the Braer is that without any crew on board it was apparently impossible to secure a towing line from the supply boat that came to her aid. Clearly, in the prevailing conditions and in close proximity to the shore there was no way that the tug could safely put a working party on board. The provisions of IMO Resolution A535 (13) entitled 'Recommendations on Emergency Towing Requirements for Tankers', which was adopted in late 1983 as a consequence of the Amoco Cadiz incident, provide certain requirements for the fitting of emergency towing positions at the bow and stern of tankers. However, these requirements, even if implemented, require there to be on board a working party able to handle towing lines and equipment. The inability of the Star Sirius to connect a towing line to the Braer, without the assistance of a working party on board, suggests that there is a need for the current IMO recommendations to be reviewed with a view to systems being put in place which would enable a tug to render assistance to a tanker without there being crew on board. Without power, unable to let go her anchors and further unable to secure a towing line, the Braer could not be manouevred and thus ran aground. Action taken: appropriate to circumstances
During a serious oil spill, those responsible for dealing with it will be under enormous pressure to do something, or at least to be seen to be doing something. That pressure will come from governments, from local industrial and commercial interests, from environmentalists and from the media. As rapid action is necessary, a well prepared and well rehearsed response plan will be needed to avoid those responsible being pressured or perhaps even panicked into making hasty and incorrect decisions. For example, in the case of the Braer there was an unusual combination of circumstances, namely the spilling of large amounts of a light crude oil in very heavy seas and with strong winds prevailing. The rough weather conditions, which continued for some days after the vessel grounded and began leaking oil, largely provided the clean-up operation on the shores of the Shetlands. Despite this, in the days following the spill, aircraft sprayed dispersants over the leaking oil. Evidence subsequently given to the Donaldson Inquiry indicated that the 120 t of chemical dispersant used dealt only with about 2000 t of the leaking oil, a very small percentage of the spill. It is questioned whether in this particular case spraying was worth the effort and expense. In addition, the local population became seriously concerned about the potential effect on their health of spraying chemicals in high winds, particularly when already worried about the health effects of the oil aerosols being blown across the islands. It is not considered here whether the decision to spray on this occasion was or was not correct, but this is an example of how pressure may be brought to do 366
something which, having regard to the particular circumstances, will provide little or no assistance and may, in fact, create additional problems.
Final Discussion It is considered here that lessons might be learned from the case of the Braer--whether by governments, by the IMO or by those responsible for planning and implementing emergency response plans. Generally, the international legislation now in force, or shortly to come into force, which is designed to prevent oil pollution incidents in the marine environment and to assist those involved to cope with them when they do occur, represents a substantial achievement over the years by those concerned with its development. Whatever is achieved in the future will, of course, need to have regard to reality and to recognize the different resources available to developed and developing countries. Further, the right balance will need to be struck--in this instance between the operational and commercial interests of the owners and operators of tankers on the one hand and, on the other, the commercial and environmental interests that will be affected if early and appropriate action is not taken. Every state does, of course, have a choice either to act alone or to take part in international negotiation and agreement which will, inevitably, produce a compromise. The fact that the USA chose not to ratify the Civil Liability Convention (The International Convention on Civil Liability for Oil Pollution Damage 1969) and the Fund Convention (The International Convention for the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971) in favour of their own OPA 90 (United States' Oil Pollution Act 1990) is considered unfortunate as this now means that for tankers trading to and from the USA their owners and operators have to have regard to a whole set of different rules and regulations (to say nothing of the potential liability in damages) to those that apply in many other parts of the world. Of course, the USA is signatory to some of the relevant international conventions and has already ratified the OPRC. However, the greater the number of countries that choose to act alone, the more complex will be the rules and regulations with which tanker operators have to cope.
Conclusions The present paper takes the view that the only sensible approach to this subject is to continue to seek international agreement with a view to there being a coherent set of rules and regulations that are both consistent worldwide and realistic in terms of what can be expected of those who have to comply with them. The alternative, potentially at least, is an ever-increasing burden being placed on owners as they try to comply with differing requirements depending on where their vessels are trading. It was precisely having regard to the need to avoid such a situation developing that, in adopting the general principles for ship reporting systems and ship reporting requirements, those concerned with IMO
Volume29/Numbers6-12 Resolution A.648(16) formally recognized 'that such different procedures and reporting formats could cause confusion to Masters of ships moving from one area to another covered by a different ship reporting system'. The danger is that if the requirements become too complex and too burdensome, they will also become counterproductive.
Addendum The above paper was prepared prior to the publishing of the report of Lord Donaldson's Inquiry (April 1994). It is therefore now possible to summarize the recommendations of Donaldson in relation to the lessons learned from the Braer incident.
The need for improved internationally agreed rules requiring early reporting of difficulties being experienced by laden tankers Identification and reporting is dealt with by Donaldson in Chapter 15. In particular, Donaldson (p. 241, para. 15.76) recommends that existing MARPOL reporting requirements should be strengthened to include mandatory immediate reporting to HM Coastguard (and its equivalents in other countries) of certain specified occurrences, including casualties, such as collision or fire, failure of propulsion or steering gear, hazards to navigation and any problem which could cause pollution. 'Ideally' this mandatory reporting requirement would be effective within territorial waters, plus a further band of about 12 nautical miles, except where this would impinge on the territorial waters of another state. The need to arrest the decline in the number of professional salvage companies Chapter 20 of Donaldson is entitled 'Dealing with emergencies---emergencytowing and salvage'. Paragraph 20.73 on p. 304 identifies the problem of salvage capacity. Although welcoming the recommendations of the Salvage Working Group which reported in February 1993, Donaldson recommends that salvage should remain a private sector service but with, as necessary, government subsidies being paid. The report recommends, inter alia, that a range of tugs of different pulling powers should be maintained, that small tugs with lesser pulling power should assist large vessels until a more powerful tug arrives and that all tugs should be multifunctional to allow them to combine salvage with other work. The value of well planned and well rehearsed emergency response plans Recommendation 93 of Donaldson (para. 23.133, p. 399) summarizes the Inquiry's recommendations concerning contingency planning. Other recommendations include that there should be a database of equipment available to harbour authorities, governments and other states (see para. 21.69, p. 334). The need for better anchoring systems The two main proposals referred to in this paper, i.e. that it should be possible for anchors to be let go from the bridge and that systems should be employed on board
tankers enabling tugs to render assistance without there being a crew on-board, have not been specifically addressed by Donaldson. The latter recommendation has not received a mention; with regard to the former, Donaldson has merely endorsed the proposal of the Marine Accident Investigation Branch that the UK Department of Trade should carry out research into the feasibility of anchoring systems which would enable anchors to be let go when a ship is without power.
The need for whatever action is taken to be appropriate to the circumstances of each particular incident This general proposal is not, perhaps unsurprisingly, dealt with as such by Donaldson. However, the spraying of dispersants is dealt with in some detail in Chapter 21, entitled 'Cleaning up Spills'; see particularly para. 21.49 et seq. Improved standards amongst classification societies At para. 7.33 on p. 77, Donaldson recommends that underwriters' organizations should participate in the Quality System Certification Scheme run by the International Association of Classification Societies. Donaldson (para. 7.37, p. 78) recommends that the UK Government should work through the IMO to press for a review of the IMO guidelines and minimum standards for classification societies with a view to improving them as necessary and to developing, as a matter of urgency, detailed specifications on precise survey and certification functions delegated to such organizations. The UK Government should also work with the IMO for swift implementation of minimum standards for all work delegated by Flag States to classification societies. Classification societies which do not meet these international standards should not be granted international recognition. Strengthening of Port State inspections Chapter 11 of Donaldson contains a detailed evaluation of existing Port State inspections and several proposals for improvements. The principal recommendation is designed to increase the perceived and actual rate of detection. A system of self-targeting is envisaged which should be introduced through the region of the Paris Memorandum of Understanding of 1982 ('the Paris MOU'). The foundation of this scheme would be a shipborne record of the results of Paris M O U inspections contained in a log book, coupled with a new notice requirement. The log book would contain records of the extent and nature of the inspections and a detailed description of the deficiencies found, if any. There then follows a detailed description of the method of selftargeting. It is also recommended that the UK Government should establish occasional inspections of all ships entering a particular UK port in a particular period. The UK Government should encourage its Paris MOU partners to co-operate in extending the policy of such saturation inspections to the whole of the region of the Paris MOU. The ultimate sanction for failing to operate the self-targeting system or for persistently operating substandard ships would be a denial of the right to load and discharge. 367