MULTIMODAL TRANSPORTATION

In India, in 1990, in the absence of uniformity of rules, an ambiguity and imbalance of interests between the operators and the cargo owners was there. To address the above and to clearly determine the responsibilities and liabilities of MULTIMODAL transport operators for loss or damage, the new law on MULTIMODAL transport was enacted by issue of an ordinance in October 1992 and was later or replaced by the Multimodal Transportation of Goods Act 1993.

The Multimodal Transportation of Goods Act, 1993 that came in force on 02.04.93 provides for the regulation of Multimodal Transportation of Goods from any place in India to any place outside India involving two or more modes of Transport on the basis of a single Multimodal Transport Contract.

The Multimodal Transportation of Goods Act; 1993 was introduced to facilitate the exporters and give them a sense of security in transporting their goods. The concept of door to door delivery, which is MULTIMODAL Transportation is all about, is catching up fast in international trade. Reduction of logistics costs is one of the important aspects of Multimodal Transportation, thereby reducing the overall cost to the exporter and making his products more competitive in the international market. It is in this context that the Government of India thought it necessary to codify the rules and regulations governing Multimodal Transportation and enacted the Multimodal Transportation of Goods Act, 1993 based on the UNCTAD / ICC rules which have gained widespread acceptance. The Multimodal Transportation Act lays down the standard terms and conditions governing this activity.

MULTIMODAL TRANSPORT OPERATOR

The Act provides of Registration of a person as a Multimodal Transport operator and Multimodal Transportation can be carried out only by such a person. The Director General of Shipping has been notified as the competent authority to perform functions under the Act including registration of MTOs. The MTO registration is valid for period of 3 years and may be renewed for further period of three year from time to time.

Under the provision of the Act only those companies who are registered by the competent authority which has been notified to be the Director General of Shipping, can carry out Multimodal Transportation. This requirement of registration has been imposed by the government to ensure that only such companies which have the necessary expertise infrastructure and financial capability are allowed to undertake Multimodal Transportation so that the interests of shippers are fully protected.

As per the MMTG Act three categories of companies are eligible to be registered as MTO’s. They are (1) shipping Companies (2) Freight Forwarding Companies (3) Companies which do not fall in either of the above two categories. In the case of shipping Companies (which own and operate vessels’) as well as Freight Forwarding Companies the turnover of the last three years should bed Rs. 50 lakhs or more to make them eligible for registration as MTO.

In the case of a company falling under third category above, the Subscribed share Capital of the company should be Rs. 50 Lakhs or more. In addition the applicant company should satisfy the following.

1. Submit a certificate of turnover duly signed and issued by a Chartered Accountant within the meaning of C.A. Act. 1949

2. Have offices / agents / representative in at least two other countries.

WHAT IS THE MULTIMODAL TRANSPORT DOCUMENT?

Increased containerization needed a single transport document covering all modes of transport from the exporter’s premises to the consignee’s premises. This has a number of advantages like reduction in overall transport cost, reduction in delays, smoother and quicker movements and improvement in quality of services. ICC and UNCTAD developed the new UNCTAD / ICC Rules for Multimodal Transport Document to support an efficient and a simple door to door liability.

The Director General of Shipping has after obtaining the prior approval of Ministry of Surface Transport, prescribed the Multimodal Transport Document under Rule 3 of Multimodal Transport Document Rules, 1994

With the advent of containers, the ocean carriers started extending their services to Inland locations, as containers, are smoothly and easily handled from one mode of transport to another. One of the most important ingredients involved in such Multimodal Transport is the existence of responsibilities of the Multimodal Transport Operator.

Previously a document called Combined Transport Document (CTD) was being issued. However, although the format of the document broadly conformed to a specimen prescribed by the International Chamber of Commerce (ICC), the CTD had not been adopted by all operators uniformly. Thus, there was an absence of uniformity of liability and other condition. In India the Foreign Exchange Dealers Association of India (FEDAI) had evolved its own rules laying down the responsibilities and liabilities of Combined Transport Operators from the inland container depots. However, these rules could not obtain wide acceptance mainly because the Combined Transport Document evolved by FEDAI did not confer negotiability and title to the goods and also because such documents were required to be exchanged for a regular on – board ocean bill of lading at the port unless the letter of credit specifically permitted the production of a combined transport Document in place of a regular Bill of Lading. Looking to the urgent need of Industry and keeping in view the provision of the Multimodal Transportation of Goods Act 1993 which is substantially based on the rules framed by the ICC and also taking into account the provisions of the UN Convention of 1980 on Multimodal Transportation of Goods, the Director General of Shipping, with approval of the Govt., has issued an Order on 17 th March, 1994 prescribing a model for the Multimodal Transport Document (MTD). The document has been prepared for carrying out the provisions of the Act keeping in view the primary objective of the legislation that the carriers are there to serve trade and not the other way around.

The Multimodal Transport Document issued under the present law is:

i) A contract for the Transportation of Goods by Multimodal Transport.ii) A negotiable document unless it is marked non negotiable at the option of the

consignor.

iii) A document of title on the basis of which its holder can take delivery of the goods covered by it.

The various governed by the document once it is executed are:

i) The MTO who is the person responsible for the execution of the Multimodal Transport Contract.

ii) The consignor who places the goods in question with the MTD for transporting the same and the consignee who is to take delivery at the destination.

iii) The bankers who would provide the mechanism for documentary credit.iv) The insurers who insure the goods against loss or damage and the liability

insurers who would cover the MTO’s liability under contract.

MTS AS AN INSTRUMENT TO ENFORCE THE PROVISIONS OF THE ACT.

Once the Multimodal Transport Operator executes the Multimodal Transport Document, he immediately assumes the role of the owner of the goods, the Principal. Thereby authorizing MTO to exercise the rights as that of the owner for claiming damages etc. and for other purposes, wherever necessary. The provisions of the Act shall have overriding effect over all other laws and any contract for MULTIMODAL Transport made in contravention of the provisions of the Multimodal Transport Act would be null and void. The issuance of the Multimodal Transport Document confers and imposes on all interested parties the rights, obligations and defenses set out in the act. In issuing the MTD, the MULTIMODAL transport operator assumes responsibility for the execution of the contract as well as would be liable for the loss or damage to goods or delay in delivery as contained in the Multimodal Transportation of Goods Act 1993.

CONTENTS OF THE MTD – GENERAL NATURE

The document contains, inter-alia, particulars regarding general nature of goods, the name and principal place of business of MTD the name of the consignor, the name of the consignee if specified by the consignor, the place and ate of taking charge of the goods by the MTO, the place of delivery of the goods, the date or the period of delivery of the goods at the place of delivery, whether it is negotiable or non-negotiable, the place and ate of its issue, etc. In addition, the standard terms and conditions regarding basis of liability of the MTO for loss or damage, delay etc. have been incorporated in the document. Relevant particulars contained in the internationally accepted documents recognized by International Chamber of Commerce have been taken into consideration while prescribing the document. The MTOs can now issue on a uniform basis Multimodal Transport Document as a negotiable instrument as per the Multimodal Transportation of Goods Act 1993 and the banks will have no difficulty in discounting the bills when such a document is presented.

STANDARD CONDITIONS GOVERNING MULTIMODAL TRANSPORT

The effect of issuance of the MTD should be well known to the parties affected by the document as this is an essential part of the Multimodal Transport contract.

The negotiability and the title to the goods and the evidentiary effect of MTD; Reservations regarding in accuracies, grounds of suspicion or the absence of reasonable means of checking & provision regarding Guarantee; Conditions governing

Dangerous Goods; Basis and conditions of liability of the MTO for loss or damage when the stage of transport where the loss or damage occurred is not know/know. Similarly, the liability of delay has been stated in the standard conditions. The limits of liability are clearly spelt out in the said conditions. The Act also lays down the conditions relating to notice of loss, damage or delay and further, provision in respect of liens, limitation of action, jurisdiction, general average clauses, etc. have been clearly spell out in the document in accordance with corresponding provision of the Act.

Besides, specifying the applicable provision of the Act the document also contains some of the conditions which are necessary to facilitate smooth transaction of Multimodal Transport. There is a residuary condition relating to arbitration which permits concerned parties to incorporate sitable provision by mutual agreement.

MTD v/s CTD

The combine transport document also earlier used for MM Transportation was essentially a document of contract for the carriage of goods for one mode of transport with the facility of inbuilt documentation for carriage of the same goods by other one or more modes of transport after the completion of the first mode. It may thus be appreciated that the CTD used in overseas carriage of goods was basically a commercial document for inter-modal transportation and a legal document for uni-modal transportation for each particular mode of transport covered under the CTD. However, it did not meet the requirements of providing a legal regime of uniform liability on the basis of a single contact of carriage of goods by Multimodal Transportation. The CTD therefore did not completely met requirements of the MUTIMODAL Transportation of Goods Act 1993 or even for that matter the UN Convention on Multimodal Transportation. The Multimodal Transport Document Model prescribed by the Govt. of India especially after the 2000’ amendment is not only a commercially acceptable and negotiable document but is also be the basis for a contract of carriage governed by uniform liability regime for Multimodal Transportation of Goods in International trade besides being a legally tenable and enforceable instrument.

Why the MTOG Act of Govt. of India is unique?

Whereas the COGSA India 1925, 1930 were clearly the adoptions of the Hague rules into our system; the MTOG Act 93’ even with 2000’ amendments contains the provision of H/Visby In quantifying of Liability Limitation to be 666.67 SDR per package or 2 SDR pen Kg whichever higher, Hamburg and the UN convention on Int. MTOG 1980 in door to door liability of the Carrier and same seen combined with Montreal convention (for International Air Transport), COTIF 1980 (for rail) and CMR 1956 (for road) e.g. In fixing the higher liability limit to 8.33 SDR if the carriage does not involve a sea leg. Some locally relevant necessities also find a convenient place and make it a well researched largely acceptable document that is also often referenced by the International agencies and our peers in world shipping.

Illustrate the 2000 amendments

The ball set rolling in 1994, the apprehensions of the Shipppers and MTOs were seen in a clear perspective.

a) MTOs require obtaining a compulsory insurance before issuing the MTD>b) The freight payable to be mentioned only if th same expressly agreed by the

consignor and consignee.c) Absence of any of the particulars listed not to affect the legal character of the MTD.d) Inclusion of the definition of ‘taking charge’ to mean that goods have been handed

over to and ACCEPTED or carriage by the MTO.e) Restriction on foreign national aspiring to become a MTO in India. They must have

established a place of business in India and the turnover certified by their local competent authority.

f) Validity of license granted by CA in India i.e. DG Shipping to be 3 years and renewable from time to time for a further period of 3 years at a time.

g) CA in India i.e. DG Shipping to continue to renew the license.h) MTO not liable to any loss, damage or delay due to a cause for which carrier is

exempted as per applicable law.

NRI

i) Shall have a established place of business in India.j) Turnover to be certified by CA.

MTO license valid for 3 years and may be renewed from time to time for a further 3 years at a time.

MTO shall issue MTD only after obtaining Insurance Cover contents of MTD

a) Nature / Ldg marks, wt, aty etc of goods.b) Date of Deliveryc) FRT payable mentioned only : if agreed by both consignor & consignee.d) Absence of any particular listed does’nt affect the legal character of MTD.

Under consigner had made a declaration of interest in timely delivery & some accepted by MTO, MTO shall not be liable for loss due to delay.

Definition of Goods – includes live animals / customs etc. irrespective of they being (not beg) carried on deck.

INTERNATION MARITIME ORGANIZATION

ASSEMBLY A23/Res.95023rd Session 26 February 2004Agenda item 17 Original: ENGLISH

Resolution

Adopted on 5 December 2003(Agenda item 17)

MARITIME ASSISTANCE SERVICES (MAS)

RECALLING Article 15(j) of the Convention on the International Maritime Organization concerning the functions of the Assembly in relation to regulations and guidelines concerning maritime safety and the prevention and control of marine pollution from ships,

NOTING the provision of regulations V/31, VII/6, VII/7-4, and VIII/12 for the International Convention for the Safety of Life at Sea (SOLAS), 1974, as amended, concerning ship reports in the event of danger or incidents,

NOTING ALSO the provision of article 8 of the International Convention for the Prevention of Pollution from Ships (MARPOL), 1973, as amended by the Protocol of 1978 thereto concerning ship reports in the event of incidents,

CONSIDERING that, in additions to the circumstances giving rise to mandatory reporting where the organization to which reports are to be made have already been designated, it would be useful for the master of ship in need of assistance to sue the same contact point in each coastal State legitimately affected by that ship’s situation, particularly in connection with the search for place of refuge.

CONSIDERING ALSO that States have the right to receive initial information and thereafter tbe kept informed of marine salvage operations conducted off their costs at the initiative of parties with a legitimate interest in a ship in need of assistance,

CONSIDERING FUTHER that is would be useful for coastal States and easier for shipmasters if any organization with responsibility for receiving reports and thereafter continuing to maintain contact with a ship in need of assistance and its owner bore, in all those Sates, a common acronym representing the minimum common duties laid down by the Organization,

CONSIDERING FINALLY the difficulty for the master to assess, when an accident occurs aboard the ship, whether there will be a need for marine assistance (salvage) or rescue of persons aboard and, in relation to rescue proper, the value to the MRCC of being informed as soon as possible of problems experience by the ship concerned, soas to prepare and appropriate search and rescue operation should the need for such an operation arise at a later stage,

HAVING CONSIDERED the recommendation made by the Maritime Safety Committee at its seventy –sixth and seventy-seventh sessions, the Marine Environment Protection Committee at is forty-eight session, and the Sub-Committee on Safety of navigation at its forty-ninth session,

1. RECOMMENDS that coastal States establish a maritime assistance service (MAS) for the purpose of:

(a) Receiving the reports, consultations and notifications required by the IMO instruments referred to in Annex I to the present resolutions;

(b) Monitoring the ship’s situation if a report, as referred to in paragraph (a) above, discloses an incident that may cause the ship to be in need of assistance;

(c) Serving as the point of contact between the master and the coastal state concerned, if the ship’s situation required exchanges of information between the ship and the coastal State but is not a distress situation that could lead to a search and rescue operation;

(d) Serving as the point of contact between those involved in a marine salvage operation undertaken by private facilities at the request of parties having a legitimate interest in the ship and the coastal State, if the coastal State concerned decides that it should monitor all phases of the operation,

2. URGES Governments to issue national instructions advising their MAS of the authority or organization:

(a) To which it should transmit information obtained from a ship;

(b) From which it should receive instructions concerning its own actions and the particulars to be transmitted to the ship,

3. INVITES Governments of coastal States that have established a MAS to forward to the Organization the details (i.e., call numbers, call signs, etc.) of their MAS to enable the Organization to circulate such particulars, so that shipmasters and other persons or organizations concerned can contact it as necessary;

4. RECOMMENDS that Governments of coastal States, when establishing a MAS, take into account the guidelines set out in Annex 2 to the present resolution;

5. REQUESTS the Maritime Safety Committee and the Marine Environment Protection Committee to keep this resolution under review and amend it as appropriate.

ANNEX I

LIST OF IMO INSTRUMENTS CONCERNED WITH MANDATORY REPORTING IN THE EVENT OF INCIDENTS INVOLVING SHIPS

1. International Convention for the Safety of Life at Sea (SOLAS), 1974, as amended

Regulation V/31 (danger messages);Regulation VII/6 and VII/7-4 (reporting of incidents involving dangerous goods);Regulation VIII/12 (accidents to nuclear ships).

2. International Convention for the Prevention of Pollution from Ships (MARPOL), 1973 as modified by the Protocol of 1978 relating thereto, as amended.

Article 8 (reports on incidents involving the discharge or possible discharge of harmful substances);

Protocol I (provisions concerning reports on incidents involving the discharge or possible discharge of harmful substances (in application of article 8)).

3. International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969 (Intervention Convention)

Article II (a) and (f) (consultations; notifications).

4. International Convention on Oil Pollution Preparedness, Response and Co-operation, 1990 (OPRC Convention)

Articles 4 and 5

5. International Code for the Safe Carriage of Packaged Irradiated Nuclear Fule, Plutonium and High-Level Radioactive Wastes on Board Ships (INF Code)

Paragraphs 29 and 30

6. Resolutions A.851 (2); General principles for ship reporting systems and ship reporting requirements, including guidelines for reporting incidents involving dangerous goods, harmful substances and/or marine pollutants.

ANNEX 2

GUIDELINES ON MARITIME ASSISTANCE SERVICES (MAS)

Introduction

The circumstances of a ship’s operation that involve a MAS are not those requiring rescue of persons

Three situations can arise;

- The ship is involved in an incident (e.g., loss of cargo, accidental discharge of oil, etc.) that does not impair its seakeeping ability but nevertheless has to be reported.

- The ship, according to its master’s assessment, is in need of assistance but not in a distress situation (about to sink, fire developing, etc.) that requires the rescue of those on board; and

- The ship is found to be in a distress situation and those on board have already been rescued, with the possible exception of those who have remained aboard or have been placed on board to attempt to deal with the ship’s situation.

If, however in an evolving situation, the persons on board find themselves in distress, the involvement of the MRCC and not the MAS will have priority

1. Establishment of MASs1.1 the establishment of a MAS should not necessarily entail the setting up of a new

organization. In so far as the present guidelines are observed, the functions of the MAS could, at the discretion of the Administration, be discharged by an existing organization, preferably an MRCC, or alternatively a harbor master’s office, a coast guard operations centre (if one exists) or another body.

1.2 The allocation of MAS functions to an MRCC could from a practical viewpoint be an advantageous and effective solution but would required the personnel to be well trained in distinguishing between circumstances causing a ship to find itself in a distress situation and circumstances placing a ship in a difficult situation but not in distress as defined in the SAR Convention and procedures arising therefrom. It should be recalled that the MRCC concept entails co-ordination of search and rescue operations. By contrast, a MAS, within the scope of the above resolution, is responsible only for receiving and transmitting communications and monitoring the situation.

1.3 The fact that the resolution recommends every coastal State to establishes a MAS should not prevent neighbouring coastal States from combining their resources under suitable arrangements to operate a joint MAS.

1.4 Conversely, a coastal state should be able to establish more than one MAS if necessarily so warrants.

2. Publicizing the establishment and existence of a MAS

2.1 Governments of coastal States are requested to notify IMO of the existence and details (call numbers, call signs, etc.) of their MAS, in accordance with the format contained in the appendix hereto.

2.2 The IMO Secretariat will periodically publish the collected particulars in a circular.

2.3 National organizations that disseminate nautical information are invited to publish such particulars.

3 Duties of MASs

3.1 In accordance with the above resolution, the functions of a MAS are the following;

1. to receive the reports, consultations and notifications provided for by the relevant IMO instruments in the vent of an incident involving a ship;

2. to monitor the ship’s situation if a report as referred to in. I discloses an incident that may give rise to a situation where the ship is in need of assistance.

3. to serve as the point of contact between the master and the coastal State if the ship’s situation requires exchanges of information between the ship and the coastal State other than a distress situation that could lead to a search and rescue operation;

4. to serve as the point of contact between those involved in a marine salvage operation undertaken by private facilities at the request of the company and the coastal State if the coastal State if the coastal State considers that it should monitor the conduct of the operation.

3.2 The establishment of a MAS does not entail any reorganization of governmental or administrative responsibilities or duties since, in accordance with the above resolution, the MAS is only a contact point. It does, however, entail the implementation of procedures and instruction enabling the MAS to forward any given information to the competent organization and requiring the organization concerned to go through the MAS in order to make contact with the ship.

National instructions should therefore indicate to the organization discharging the MAS function at a minimum:

- The authority of organization to which it transmits the information obtained from a ship; and

- The authority or organization from which it received instructions concerning its action and the partifulars to be transmitted to the ship.

Nevertheless, as soon as information indicates that the ship’s situation might subsequently require a rescue operation, the MRCC if the MAS function is not discharged by it, must be informed so that it can make preparations to respond if necessary.

3.3 The above resolution and the present guidelines would not prevent a government from allocating to its MAS duties other than those referred to above with regard to a ship in need of assistance.

4. Operations of a MAS

4.1 A MAS should be operational on a 24-hour basis.

4.2 It should be possible for the English Language to be used in exchanges between a ship in need of assistance and a MAS.

4.3 MASs should be authorized by their respective Governments to exchange with each other information concerning reports received and situations involving ships which may be in need of assistance.

5. Communication facilities

With regard to provisions of communications facilities to MASs, circular (COMSAR/Circ. 18, entitled :Guidance on minimum communication needs of maritime rescue co-ordination centres (MRCCs):, could be used as a basis.

APPENDIX TO ANNEX 2

NOTIFICATION OF A MASS TO IMO

MAS…………….(name of country and only supplementary details)

Telephone : +

Fax: +

Telex:

Inmarsat C:

MMSI:

E-mail:

AFTN:

Watch on VHF channels:

Postal address:

Notifications made on behalf of the Government of ……………….. by ……………. (name, telephone number, fax number, e-mails and postal address)

____________________

ASSEMBLY A23/Res.949

23rd Session 5 March 2004Agenda item 17 Original: ENGLISH

Resolution A.949(23)

Adopted on 5 December 2003(Agenda item 17)

GUIDELINES ON PLACES OF REFUGE FOR SHIPS

IN NEED OF ASSTANCE

THE ASSEMBLY

RECALLING Article 15(j) of the Convention on the International Maritime Organization concerning the functions of the Assembly in relation to regulations and guidelines concerning maritime safety and the prevention and control of marine pollution from ships,

RECALLING ALSO the obligations and procedures for the master to come to the assistance of persons in distress at sea, established by regulation V/33 of the International Convention for the Safety of Life at Sea, 1974, as amended,

RECALLING FURTHER that the International Convention on Maritime Search and Rescue, 1979, as amended, established a comprehensive system for the rescue of persons in distress at sea which does not address the issue of ships in need of assistance,

CONSCIOUS OF THE POSSIBILITY that ships at sea may find themselves in need of assistance relating to the safety of life and the protection of the marine environment,

RECOGNIZING the importance of and need for providing guidance for the masters and/or salvors of ships in need of assistance,

RECOGNIZING ALSO the need to balance both the prerogative of a ship in need of assistance to seek a place of refuge and the prerogative of a coastal State to protect its coastline,

RECOGNIZING FURTHER that the provision of a common framework to assist coastal States to determine places of refuge for ships in need of assistance and respond effectively to requests for such places of refuge would materially enhance maritime safety and the protection of the marine environment,

HAVING CONSIDERED the recommendations made by the Maritime Safety Committee at its seventy-sixth and seventy-seventh sessions, by the Marine Environment Protection Committee at its forty-eight session, by the Legal Committee at its eighty-seventh session and by the Sub-Committee on Safety of Navigation at its forty-ninth session,

1. ADOPTS the Guidelines on places of refuge for ships in need of assistance, the text of which is set out in the annex to the present resolution;

2. INVITES Governments to take these Guidelines into account when determining and responding to request for places of refuge from ships in need of assistance;

3.REQUESTS the Maritime Safety Committee, the Marine Environment Protection Committee and the Legal Committee to keep the annexed Guidelines under review and amend them as appropriate;

4. REQUESTS the Legal Committee to consider, as a matter of priority, the said Guidelines from its own perspective, including the provision of financial security to cover coastal State expenses and/or compensation issues, and to take action as it may deem appropriate.

ANNEX

GUIDELINES ON PLACES OF REFUGE FOR SHIPS

IN NEED OF ASSITANCE

Table of Contents

I General

1.1 to 1.7 Introduction1.8 to 1.11 Background1.12 to 1.17 Purpose of the guidelines1.18 to 20 Definitions

2. Guidelines for action required of masters and or salvors in need of places of refuge

2.1 Appraisal of the situation2.2 Identification of hazards and assessment of associated risks2.3 Identification of required actions2.4 Contacting the authority of the coastal State2.5 to 2.6 Establishment of responsibilities and communication with all parties involved2.7 to 2.8 Response actions2.9 Reporting procedures

3 Guidelines for actions expected of coastal States

3.4 to 3.8 Assessment of places of refuge3.9 Event-specific assessment3.10 to 3.11 Expert analysis3.12 to 3.14 Decision-making process for the use of a place of refuge

Appendix 1 Applicable international conventions

Appendix 2 Guidelines for the evaluation of risks associated with the provision of places of refuge.

F

I General

Introduction

Objectives of providing a place of refuge

1.1 Where the safety of life is involved, the provisions of the SAR Convention should be followed. Where a ship is in need of assistance but safety of life is not involved, these guidelines should be followed.

1.2 The issue of “places of refuge” is not a purely theoretical or doctrinal debate but the solution to a practical problem; What to do when a ship finds itself in serious difficulty or in need of assistance without, however, presenting a risk to the safety of life of persons involved. Should the ship be brought into shelter near the coast or into a port or, conversely, should it be taken out to sea?

1.3 When a ship has suffered an incident, the best way of preventing damage or pollution from its progressive deterioration would be to lighten its cargo and bunkers; and to repair the damage. Such an operation is best carried out in a place of refuge.

1.4 However, to bring such a ship into a place of refuge near a coast may endanger the coastal State, both economically and from the environmental point of view, and local authorities and populations may strongly object to the operation.

1.5 While coastal States may be reluctant to accept damaged or disabled ships into their area of responsibility due primarily to the potential for environmental damage, in fact it is rarely possible to deal satisfactorily and effectively with marine casualty in open sea conditions.

1.6 In some circumstances, the longer a damaged ship is forced to remain at the mercy of the elements in the open sea, the greater the risk of the vessel’s condition deteriorating or the sea, weather or environment situation ;changing and thereby becoming a greater potential hazard.

1.7 Therefore, granting access to a place of refuge could involve a political decision which can ony be take on a case-by-case bais with due consideration given to the balance between the advantage for the affected ship and the environment resulting from bringing the ship into a place of refuge and the risk to the environment resulting from that ship being near the coast.

Background

1.8 There are circumstances under which it may be desirable to carry out a cargo transfer operation or other operations to prevent or minimize damage or pollution. For this purpose, it will usually be advantageous to take the ship to a place of refuge.

1.9 Taking such a ship to a place of refuge would also have the advantage of limiting the extent of coastline threatened by damage or pollution, but the specific area chosen may be more severely threatened. Consideration must also be given to the possibility of taking the affected ship to a port or terminal where the transfer or repair work could be done relatively

easily. For this reason the decision on the choice and use of a place of refuge will have to be carefully considered.

1.10 The use of places of refuge could encounter local opposition and involve political decisions. The coastal States should recognize that a properly argued technical case, based on a clear description of the state of the casualty, would be of great value in any negotiations which may take place.

1.11 At the international level, the Conventions listed in Appendix I, as may be amended, constitute, inter alia, the legal context within which coastal States and ships act in the envisaged circumstances.

Purpose of the Guidelines

1.12 The purpose of these Guidelines is to provide Member Governments, shipmasters, companies (particularly in connection with the ISM Code and procedures arising therefrom), and salvors with a framework enabling them to respond effectively and in such a way that, in any given situation, the efforts of the shipmaster and shipping company concerned and the efforts of the government authorities involved are complementary. In particular, an attempt has been made to arrive at a common framework for assessing the situation of ships in need of assistance.

1.13 Theses Guidelines do not address the issue of operations for the rescue of person at sea, inasmuch as the practical difficulties that have given rise to the examination of the issue of places of refuge relate to problems other than those of rescue. Two situations can arise;

- the ship, according to the master’s assessment, is in need of assistance but not in a distress situation (about to skin, fire developing, etc.) that required the evacuation of those on board; or

- those on board have already been rescued, with the possible exception of those who have stayed on board or have been placed in an attempt to deal with the situation of the ship.

1.14 If, however, in a evolving situation, the persons on board find themselves in distress, the rules applicable to rescue operations under the SAR Convention, the IAMSAR Manual and documents arising therefrom have priority over the present Guidelines (and procedures arising herefrom).

1.15 In any case the competent MRCC should be informed about any situation which may develop into a SAR incident.

1.16 Even though a “rescue” operation, as defined in the International Convention on Maritime Search and rescue (SAR) is not the case, the safety of persons must nevertheless be constantly borne in mind in the application of these Guidelines, particularly in two respects:

- if the ship poses a risk (explosion, serious pollution etc.) to the life of persons in the vicinity (crews of slave vessels, port workers, inhabitants of the coastal area, etc.);

- if persons voluntarily say (master, etc.) or go (fire-fighters and other experts, personnel of marine salvage or towage companies, etc. on board to attempt to overcome the difficulties experienced by the ship.

1.17 These Guidelines do not address the issue of liability and compensation for damage resulting from a decision to grant or deny a ship a place of refuge.

Definitions

1.18 Ship in need of assistance means a ship in a situation, apart from one requiring rescue of persons on board, that could give rise to loss of the vessel on an environmental or navigational hazard.

1.19 Place of refuge means a place where a ship in need of assistance can take action to enable it to stabilize its condition and reduce the hazards to navigation, and to protect human life and the environment.

1.20 MAS means a maritime assistance service, as defined in resolution A, 950(23), responsible for receiving reports in the event of incidents and serving as the point of contact between the shipmaster and the authorities of the coastal State in the event of an incident.

2 GUIDELINES FOR ACTION REQUIRED OF MASTERS AND/OR SALVORS OF SHIPS IN NEED OF A PLACE OF REFUGE

Appraisal of the situation

2.1 The master should, where necessary with the assistance of the company and/or the salvor, identify the reasons for his/her ship’s need of assistance. (Refer to paragraph 1 of Appendix 2.)

Identification of hazards and assessment of associated risks.

2.2 Having made the appraisal referred to in paragraph 2.1 above, the master, where necessary with the assistance of the company and/or the salvor, should estimate the consequences of the potential casualty, in the following hypothetical situations, taking into account both the casualty assessment factors in their possession and also the cargo and bunkers on board;

- if the ship remains in the same position,

- if the ship continues on tis voyage,

- if the ship reaches a place of refuge ; or

- if the ship is take out to sea.

Identification