Marine Poficy, Vol. 19, No. 6, pp. 453-467, 1995
Copyright © 1995 Elsevier Science Ltd Printed in Great Britain. All rights reserved 0308-597X/95 $10.00 + 0.00


A European lawyer's view of the Government response to the Donaldson Report
Glen Plant
Centre for Environmental Law and Policy, London School of Economics, Houghton Street, London WC2A 2AE, UK

The Report of Lord Donaldson's Inquiry into the Prevention of Pollution from Merchant Shipping, of May 1994, discussed here, is a document of the first rank of importance for all those interested in shipping safety and the prevention of ship-source pollution. The UK Government is called upon to take a lead internationally, regionally and nationally in these interrelated fields, and its first published response, issued in February 1995, and many of its initiatives, examined here, suggest that it has, for once, heeded the cries of a major inquiry. In doing so, however, as is explained, it must constantly take into account major developments in the European Community. While finally, many new ideas and approaches are embraced or are being further considered by the Government, it is argued here that the whole process, by keeping strictly within the bounds of existing international law and by emphasising voluntarism (indeed, restricting strict enforcement actions to mere measures of last resort), it is somewhat behind international trends, manifested in the acceptance of the principle of mandatory ships' routeing and ship reporting systems and in the current debate on development of the Particularly Sensitive Sea Area concept.

The origins and scope of Lord Donaldson's Inquiry In the early hours of 5 Janury 1993, the M/T Braer lost propulsion in heavy seas in the Fair Isle Channel about 10 miles off and roughly south of Sumburgh Head, Shetland. Later that morning she stranded, despite efforts to prevent this, at Garth's Ness, South Shetland, and broke up over the ensuing days, losing her entire cargo of 85 000 tons of North Sea light crude oil, as well as some 1 825 tons of bunker fuel and diesel oil, 2 when continuinsj bad weather put paid to continued salvage efforts.J This incident
1'Safer Ships: Cleaner Seas: Government Response to the Report of Lord Donaidson's Inquiry into the Prevention of Pollution from Merchant Shipping', Cm 2766, February 1995 (hereinafter 'Government Response'). 2This is quite significant in the sense that it may have led to one of Lord Donaldson's major themes, the need to extend most protective measures to other types of vessel besides tankers, in view of the potential pollution effects of bunker fuel, lubricants and other oils carried on board ships other than as cargo; see, eg, Inquiry Recommendation 57, which is accepted in principle by the Government, Government Response, pp 32-33. 3See, eg, The Guardian, 15 January 1993, p 5.

came close on the heels of another major oil pollution disaster off northern Spain 4 and was closely followed by a serious, pollution-causing collision off Sumatra .5 The Braer incident, in particular, aroused a great deal of public concern, especially in the U K and Western Europe. The UK, as coastal State, and Liberia, as Flag State, held the normal inquiries concerning the causes of her loss. 6 Unusually,
4The 19 year old, laden 114 000 dwt oil tanker, Aegean Sea, stranded and caught fire during an unsuccessful attempt to enter the port of La Corufia on the night of 3 December 1992. 55-60 000 tonnes of crude oil were lost, US Coast Guard, Oil Pollution Act of 1990 News Update, No 13, 15 December 1992, p5. 5The laden 250 000 dwt Danish tanker, Maersk Navigator, collided with an empty Japanese tanker near the Western entrance to the Straits of Malacca on 21 January 1993, ENDS Report No 216, January 1993, p 15. 6UK Maritime Accident Investigation Bureau, Report of the Chief Inspector of Marine Accidents into the Engine Failure and Subsequent Grounding of the Motor Tanker Braer at Garth's Ness, Shetland on 5 January 1993; Liberian Bureau of Maritime Affairs, Report of the Investigation into the Matter of the Loss by Grounding of the Motor Tanker Braer on the South Coast of Shetland Island, 5 January 1993.


A European lawyer's view of the Government response to the Donaldson Report: G Plant

however, the U K Department of Transport (DOT) also set up a more far-reaching Inquiry with very broad terms of reference; these were: "To advise whether further measures are appropriate and feasible to protect the U K coastline from pollution from merchant shipping. Due consideration should be given to the international and economic aspects of any action". It is the Report of this Inquiry and the Government's response to it, against the background of significant developments in the E u r o p e a n Community (EC), that are examined in this article. Lord Donaldson of Lymington, Master of the Rolls from 1982 to 1992, was appointed to head the Inquiry. He was assisted by two technical Assessors: Professor Alisdair Mclntyre, Emeritus Professor of Fisheries and Oceanography at Aberdeen University; and John Rendle CBE, formerly with Shell Tankers (UK). They took evidence from a host of organisations" and issued their final Report, 'Safer Ships, Cleaner Seas', 8 (the 'Report') on 17 May 1994. Meanwhile they made only one interim recommendation, 9 subsequently accepted by the Government, m that the U K should ratify the 1989 Salvage Convention ~l and the 1992 Protocols to the 1969 Civil Liability Convention 12 and the 1971 Fund Convention 13 as soon as possible. They also requested the G o v e r n m e n t to conduct a study of traffic patterns in the Fair Isle Channel to aid their inquiries, 14 which it did. The Report is an impressive and comprehensive document running to 522 pages, divided into 23 chapters, and making 103 very full Recommendations, addressed essentially to the UK Government, but also through it to other members of the maritime community, including the IMO, and to the public. It is primarily a document about protection of the UK's coast from waterborne pollution from merchant ships.~5 Nevertheless, it accepts the prevalent view that the problem of ship-source pollution is a
7The author submitted evidence to it on international legal matters on the first day for the taking of evidence, 20 April 1993, as part of a team acting for the Advisory Committee on Pollution of the Sea (ACOPS). See now Plant, 'Legal Environmental Restraints on Navigation post-Braer', in Oil and Gas Law and Taxation Review, Vols 9-10, 1992-93, pp 245-68. 8Cm 2560. 9In a letter dated 10 June 1993, reproduced in Appendix P to the Report. mlt became Party to these instruments on 29 September 1994, in a joint ceremony with France and Germany: see Government Response, p 48. l i T h e 1989 International Convention on Maritime Salvage, IMO Doc. LEG/CONF.7/27, 2 May 1989. 12The 1969 International Convention on Civil Liability for Oil Pollution Damage, UKTS 106, 1975, Cmnd. 6183. 13The 1971 Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, UKTS 95, 1978, Cmnd. 7383. ~4Letter dated 27 May 1993, reproduced in Appendix O. ~51ncluding private yachts. Airborne pollution from ships and pollution from warships, fleet auxiliaries and other ships used on government non-commercial service are not considered.

global one, properly regulated at the international level, with standards promulgated largely through the IMO and, ideally, enforced by Flag States; it also takes the realistic view that Flag State jurisdiction alone does not work, and that greater reliance needs to be placed on port (and coastal) State enforcement jurisdiction. 16 The first paragraph of the 'Overview' to the Report recognises that, "whilst much is already being done, there is a pressing need for the United Kingdom to take new initiatives internationally, regionally and nationally". It goes on to say that passing traffic is as great a problem as traffic destined for U K ports, so that the measures which it recommends "need, in the main, to be adopted in cooperation with our regional neighbours and preferably on a world-wide basis", while reserving the option of unilateral action where appropriate. t 7 In addition, the Report "found that pollution control and safety are very closely linked, because the best way to maintain safety and prevent pollution is to preserve the integrity of the ship. Much of [it] is thus as relevant to safety as to pollution". 18

The UK Government's initial response
The U K G o v e r n m e n t took the Report very seriously from the beginning. It stated that it supported its broad thrust~20 and took immediate steps to implement some of the Recommendations, 21 initiated studies in respect of others 22 and promised a full

1sit should be borne in mind, however, that, at the end of the day, only a Flag State can ensure comprehensive survey, inspection and control: Plant, op cit Ref 7, p 253. 17Overview, para. 6. Pursuing this theme, the Report itself continues: "it is essential that nothing is done to conflict with IMO or any of the International Conventions and agreements. Nevertheless, the fact remains that international organisations, including IMO, normally work through consensus. While this has great merit when a unified approach towards problems is agreed and carried out, finding a consensus can lead to frustrating delays. A balance is sometimes needed between consensus and speed, and there may sometimes be good reasons for a single country or group of countries to move faster than the remainder of IMO": para. 2.11; see also para. 5.7. 18Report, para. 1.11. ~gSee the statement by the Rt Hon. John McGregor, Secretary of State for Transport, H.C. Deb., 17 May 1994, at cols 675-677. 2°~bid, col. 675, and Government Response, p 1. 21For example since June 1994, it has published, in accordance with Recommendation 41, details of foreign flag vessels detained at UK ports (Government Response, pp 1 and 24 and statement by John McGregor, ibid, cols 675-676); two emergency tugs have been stationed in the Dover Strait and the Minch for a trial period, pursuant to Recommendation 85(m) on salvage provision (ibid, pp 1 and 51-52); and legislation (the Merchant Shipping (Salvage and Pollution) Act 1994, II Eliz. 33, C. 28) was put in place to permit the UK to become Party to the treaty instruments referred to in Refs 11-13, op cir. 22A study on Recommendation 85, on enhanced salvage provision, being conducted by the Marine Safety Agency, concentrates on the Dover Strait, Western Approaches and NW Scotland areas and covers all aspects of the Report's ideas on


A European lawyer's view of the Government response to the Donaldson Report: G Plant

response as soon as possible. The G o v e r n m e n t Response of February 1995 addresses each Recommendation in turn and, while it rejects some (relatively unimportant ones) e3 and is still considering and consulting on others 24 (awaiting the results of studies into the more radical and complex among them), 25 it accepts the vast majority either in full or in principle. It also describes the steps that Government is taking in cooperation with its international partners to implement them, claiming the taking of leadership and the making of 'significant headway' at the international level. 26 Finally, it describes the consultations the G o v e r n m e n t has had with industry and emphasises that it "will consider unilateral action if that is the only effective, or timely, way forward". 27
franchising, including costs and benefits: see Government Response Appendix A. The Government did not take the opportunity to act upon Recommendation 27, on a new UK waste reception system, when faced with two amendments to the Merchant Shipping (Salvage and Pollution) Bill; this would substantially have given effect to them, by placing a statutory obligation, to be policed by the DoT, on port and terminal operators to ensure the provision of adequate facilities, and by subsuming charges therefor into general port dues. In answer to Lord Clinton-Davis, Labour's Transport Spokesman in the Lords, the Government pleaded the need for further study, thought and consultation: ENDS Report No 234, July 1994, p 30. Separate studies are being conducted by the Marine Safety Agency and consultants WRc, "which will form the basis for consultation with interested parties to establish the best way of dealing with the Inquiry's proposals and meeting the Government's aims"; Government Response, p 18. Other research projects concern contaminated ballast water (ibid, pp 18-19), and anti-fouling paints (TBTs), ibid, p19. 23The Government view is as follows in respect of the belowmentioned Recommendations: 9(a)(i) and (b): ports should not be told, but should be free to use their commercial judgement in deciding how to create proposed port dues differentials designed to favour segregated ballast oil tankers (as to the IMO guidance and EC measures on which see infra Ref 39, para. (d)); 36: there is no need for a statutory obligation to ensure that UK harbour authorities report ship arrivals and departures for port State control purposes, as the existing voluntary system operates effectively; 43: there is no case for a special port State inspection regime for ships engaged primarily in UK waters over and above the ordinary arrangements for vessels calling at UK ports; 60: ships' routeing measures cannot be enforced through port State inspection, if this involves requirements of self-targeting, upon entry to a port, backed up with a ban on loading or unloading in port in the event of non-compliance with such measures (as to which see further infra text at Refs 56-61), and international agreement to this would not be forthcoming in any event; 72(d) (in part): it would be unhelpful, at this stage, to seek international agreement to permit requests to ships participating in ship reporting systems to explain as a matter of routine, as opposed to in exceptional circumstances, why they chose a particular route; 99: see text infra; and 103(c) (in part): the UK Marine Pollution Control Unit is too small to envisage exchanges of staff with, as opposed to secondments from, harbour authorities and oil companies. 24See infra, text at Refs 63, 83, 101, 117, 128, 137, 148, 151,174 and 208; also Refs 211 and 212. 2SOp cit Ref 22. 2~Government Response, p 1. Indeed, the number of recent initiatives taken by the UK in relevant international fora is impressive: see infra generally, and esp. Refs 211-213. 271bid, p 1.

It emphasises, moreover, that the G o v e r n m e n t Response is merely a 'snapshot' of the Government's progress to date in responding to the Report and is not the end of the story; while refusing to go as far as Recommendation 99 (that it should make an annual report to Parliament on the implementation of the Report), it accepts the "principle that interested parties should be kept in touch with progress" in its implementation. 2g

Other UK and European political developments
The Inquiry and the Government's response to it have not occurred in a political vacuum. Indeed, such was the political pressure for action in the U K and Western E u r o p e generally in January and February 1993, that the UK Government, following consultations with tanker organisations, announced the application of "interim measures and recommendations that could be put in place for tankers in United Kingdom waters to protect sensitive areas from the risk of accidental pollution' .29 This was followed by submission to and adoption by the IMO, in June 1993, of a number of voluntary ships' routeing and ship reporting measures around the U K coast, 3° which came into effect in November 1994. In July 1994, moreover, the Merchant Shipping (Salvage and Pollution) Act 31 was passed, and certain of its provisions were brought into force from 28 July 1994 onwards. 32 This provides, inter alia, strict liability for oil pollution in U K waters to cover spills of persistent oil from all ships and not merely oil tankers covered by the CLC and Fund Conventions (Section 6(1)). The Inquiry and G o v e r n m e n t have also had to bear in mind, and to comment upon, developments at the level of the European Community. All of the major E C institutions have been very active in the marine safety and environmental protection field since D e c e m b e r 1992. The European Parliament quickly proposed a number of measures restrictive of tanker traffic. 33 In
281bid, p 2.

29UK Government Notice, dated 11 January 1993, followed by
the publication of the 'Voluntary Interim Code for Ships Carrying Oil or Other Hazardous Cargoes in Bulk in United Kingdom Waters', IMO Doc. MSC 62/23/2/Add. 1, 30 March 1993. 3°See now IMO Res. A.768 (18), 4 November 1993. 310p cit Ref 21. 32The Merchant Shipping (Salvage and Pollution) Act 1994 (Commencement No 1) Order 1994, SI, 1994/1988. a3Res. P.E. 163.454 of 17 December 1992 (La Corufia), B3-0242 and 0257/93 of 11 February 1993 (Maersk Navigator) and B3-0047, 0048, 0054, 0067, 0076, 0085 and 0095/93 of 21 January 1993 (Shetland Islands). The latter, inter alia, called on the EC Commission "to bring forward a proposal for the prohibition of shipments of dangerous cargo through the waters of environmentally sensitive areas of the Community (including Shetland) and through routes deemed unsafe" and on "all responsible authorities in the Community" to, inter alia, set "a date for banning oil-tankers which do not have a double hull from


A European lawyer's view of the Government response to the Donaldson Report: G Plant

January 1993, the Council of Ministers prepared a set of Conclusions, which urged the consideration of various actions by the Commission and Member State Governments. 34 In pursuance of these, the following month the Commission finalised a Communication on A C o m m o n P o l i c y o n S a f e Seas. 35 This common policy was approved by the Environment Council, with some amendments, in June 1993, 36 and by the Parliament on 9 March 1994. Under this, the Commission and Member State Governments have been engaged in conducting and commissioning further studies; 37 in particular the Council invited M e m b e r States to determine [Marine] Environmentally Sensitive Areas (MESAs) on the basis of specific criteria (since drafted by the Commission's Services and published on 15 July 1993) for the purpose of "requir[ing] adequate standards for ships sailing through environmentally sensitive areas". In addition, the Commission has launched a major legislative programme, which is having a significant impact on the shipping safety and environmental protection policies of many nonMember, as well as Member, States, in addition to the shipping and related industries. 38 The Report lists the existing and proposed measures, as of May 1994, 39 and discusses each of them in turn; it also
territorial waters of the Member States", require "obligatory pilot guidance when routes pass near the coast" and introduce "radar vessel control in particularly hazardous areas", paras 5 and 7. 34Conclusions of the extraordinary Transport/Environment Council on 'Maritime Safety and Pollution Prevention in the Community' of 25 January 1993, Bull. EC 1/2-1993, point 1.2.103. Further such joint Council meetings took place in March 1993 (as to which see Donaldson Report, para. 5.74) and March 1994: see 'Conclusions' dated 24 March 1994. 35COM (93) 66 final of 24 February 1993. 36Council Res. of 8 June 1993 on 'A Common Policy on Safer Seas' (93/C 271/01), OJ C.271, 7 October 1993, p 1 and Conclusions of 29 June 1993, Bull. EC 6-1993, point 1.2.116. 3ZCouncil Conclusions of 29 June 1993, ibid. See also the Commission Services' Progress Report on the Common Policy on Safe Seas, EC Doc. SEC(94) 503, 22 March 1994, pp 4-5. The EC's very significant so-called 'Green Paper on Remedying Environmental Damage' (COM(92) 278) (which discusses the potential application of civil liability and joint compensation scheme approaches to implementing the 'polluter pays' principle) also has potential relevance for the marine environment of the Community; as to its current status see 20 Environmental Liabfity Report, April 1995, pp 10-11. 38R Celli (in 'The European Community Approach', Safety at Sea International, June 1994, pp 25, 27) lists: the enhancement of the safety policy of the International Association of Classification Societies (IACS); the promotion, with much success, by the oil and chemical industries of their own programmes for the survey and inspection of ships as a precondition to their using them in trade (such as SRE - Ship Inspection Reports - and DI Chemical Distribution Institute - standards); and "the adoption by some of the marine underwriters and P&I Clubs of a more severe policy towards unseaworthy vessels". 39At para. 5.70. This legislation is centred upon the stricter enforcement of existing IMO standards, in EC waters or in relation to vessels registered in Member States, but also goes further "to include other matters such as the safety of ships not within the IMO (sic) standards of equipment and the training of crews": Celli, ibid, p 25. Finalised legislation now includes: (a) the

Council Directive on Minimum Requirements for Vessels Bound for or Leaving Community Ports and Carrying Dangerous Polluting Goods, (the Pre-Entry Reporting Directive), 93/75/EEC, 13 September 1993, OJ L.247, p 19. This requires the operator of a merchant ship, before departing a third port bound for an EC port, to report to the designated authority of the EC Port State: her name and call sign; her nationality; her length and draught; her port of destination and estimated time of departure for and arrival at it; her intended route; and full details of dangerous or polluting cargo on board, as well as confirmation of the presence of documentation on board giving details of them and their location. Merchant ships departing an EC port are also required to report these matters to the designated authority of that State. It also includes provisions that do not appear to be limited to ships calling at EC ports, on notification to coastal (Member) States in the event of a pollution-threatening incident (Article 6) and the broadcasting "within the relevant areas" of such notifications and "information with regard to any vessel which poses a threat to other shipping" (Article 9). In force from 15 September 1995, this replaces Directive 79/116 (OJ (1979) L.33), as amended by Directive 79/1034 (OJ (1979) L.315), concering minimum standards for certain tankers calling at EC ports. (b) the Council Directive on Common Rules and Standards for Ship Inspection and Survey Organisations, 94/57/EEC (Classification Societies Directive), OJ (1994) L.139, 12 December 1994, to come into force on 31 December 1995. This sets quantitative as well as qualitative criteria for the continued recognition by Member States of classification societies' certificates and requires vessels with non-recognised certificates to be inspected first in EC ports and appropriate action to be taken against such vessels found to be sub-standard; (c) the Council Directive on the Minimum Level of Training for Maritime Occupations (Training Directive), 94/58/ EC, 22 November 1994, OJ (1994) L.139, 12 December 1994, to come into force on 31 December 1995. This requires EC seafarers to have certificates of aptitude issued by a Member State, in accordance with IMO requirements, and a common standard for the recognition by Member States of third Flag State certificates. It also refers to a common language among seafarers on EC vessels; (d) the Council Regulation on the Implementation of IMO Resolution A.747 (18) on the Application of Tonnage Measurements of Ballast Spaces in Segregated Ballast Oil Tankers (SBTs Regulation), 2978/94, 22 November 1994, OJ (1994) L.139, 12 December 1994, to come into force on 1 January 1996. This will remove disincentives to the operation (involving calls at EC ports) of SBT oil tankers, which have a more environmentally friendly but consequentially larger construction than other tankers and so are normally liable to pay heavier harbour and pilotage fees, by making legally binding in those ports IMO standards applying reduction schemes for levies charged on them; and the Council Directive Concerning the Enforcement, in Respect of Shipping Using Community Ports and Sailing in Waters under the Jurisdiction of Member States, or International Standards for Ship Safety, Pollution Prevention and Shipboard Living and Working Conditions (Port State Control Directive) which is largely self-explanatory and will enter into force on 1 July 1996. Celli (ibid, p26) suggests this: "The importance of this . . . should not be underestimated and its objectives should be closely considered. The Commission attaches particular importance to the elimination of substandard ships as a preventive action for achieving safety at sea [and so environmental protection] and it therefore considers the inspection of ships by the port state as the central pillar of Community policy regarding the convergent implementation and uniform enforcement of IMO and ILO . . . provisions on all vessels, regardless of flag, operating in Community waters." The "lack of a common approach to inspection and the lack of uniformity in inspection criteria", he continues, "have enabled substandard ships to escape the net of controls [under the Paris MoU] by making selective use of certain ports". The Directive is designed to remedy this by requiring, inter alios, the putting in place of several different levels of inspection, including enhanced measures in respect of bulk carriers, passenger ships and (older)


A European lawyer's view of the Government response to the Donaldson Report: G Plant

suggests the then probable contents of the second tranche of legislation to follow. 4° To the extent of the scope of this legislative programme, the U K Government's response to many of the Recommendations has to bear in mind what is practically achievable in Brussels. 41

The principal recommendations: the overview
The Overview makes it clear that the Inquiry's Recommendations can be divided into two sets: (i) those concerning deterrence and detection of wrongdoing; and (ii) those involving the dissemination of information to ships' masters planning voyages.
(i) Deterring and detecting w r o n g d o i n g

The philosophy behind the first set of Recommendations is stated in paragraph 5, as follows: It is always idle to seek to change human nature. The answer to the problem lies in working with it and seeking to provide incentives and encouragement for the adoption of the highest standards at every level, coupled with disincentives, including harsh sanctions for those who persistently ignore their responsibilities towards the environment. The Report, with very few exceptions, 42 found no problem with the level of international standards for pollution prevention and control, which, it notes, 43 are continuously being revised and tightened up. 44 Its concern is with their enforcement, the encouragement of compliance
oil tankers within five years of phasing out under MARPOL 73/78 requirements, all of which have displayed particular safety problems in recent years. In addition, it requires Member States to ensure that any detected deficiencies are rectified and provides a harmonised list of deficiencies involving danger to safety, health or the environment that necessitate detention of the ship. A ship refusing to proceed to a repair yard to remedy deficiencies is excluded from EC ports until repairs are completed. One piece of proposed legislation is not yet finalised: the Council Directive concerning the setting up of a European Vessel Reporting System in the Maritime Zones of Member States (EUROREP Directive): see COM(93)647 final, OJ (1994) C.22, 17 December 1993; COM(94)220 final, OJ (1994) C.22; and OJ (1994) C.193, 16 July 1994. 4°At para. 5.73. In the event only two measures have been passed to date: a Parliamentary Resolution on safety at sea (B4-0236/94, 27 October 1994) and a Council Resolution on ferry safety (of 22 November 1994). In addition, the Commission has announced that it will put forward a proposal for mandatory introduction of the IMO's International Safety Management (ISM) Code for the Operation of Ships and Pollution Prevention (IMO Res. A.741 (18), 4 November 1993) for certain vessels operating in EC waters, by 1 July 1996: see Government Response, pp 11-12. See also Progress Report, op cit Ref 37, p 2. 41See its responses to Recommendations 5, 9, 13, 18, 20, 21,32, 33, 41, 44, 59, 68-70, 95-97, 102 and 103 and generally infra. 421t recommends, for example, that the discharge of a certain additive to lubricating oil be prohibited or controlled to protect seabird populations: Report, para. 9.30 43Overview, para. 3. 44See Report, para. 4.3.

and the necessary 'backchecks' to ensure both that compliance occurs and that this has the intended effect in practice. 45 The Overview places emphasis first on enhancing Flag State control, which the U K Government welcomes. 46 The rather idealistic, longterm solution that, it is suggested, 'may come' '[i]deally' is that: "Flag States which failed to live up to their internationally agreed obligations would face severe sanctions, including withdrawal of recognition of their authority. ''47 The Government, indeed, has accepted this, 4s at least to the extent of proposing a number of possible amendments to the SOLAS Convention, 49 including suspension of mutual recognition of certificates until compliance with IMO standards by Flag States with poor records has been established. 5° But, sensibly, the Overview places emphasis on the suggested short/medium term solution of "cooperative self-defence by regional port and coastal States". 51 The scheme in contemplation, 52 as the UK's "first line of defence", 53 is one of port State inspection and enforcement enhanced from its present status, notably under the 1982 Paris M e m o r a n d u m of Understanding on Port State Jurisdiction (Pards MoU),54 as the equivalent of 'road-side tests' to that of the UK's regular M O T test for cars. 55 This should be combined with ships targeting themselves for inspection, and this in a manner designed to perpetuate this self-targeting obligation with each European port of call until the deficiencies in question are remedied; 56 this is in preference to the existing system, under the Paris MoU 57 and its equivalents elsewhere, 5s of national quotas for inspection. 59

451bid, para 4.26. 46Government Response, p 3. 47Overview, para. 8. 48Government Response, p 3. 49"1"he1974 International Convention for the Safety of Life at Sea, UKTS 46, 1980, Cmnd. 7874. 5°IMO Doc. FSI 3/INF.7, 25 November 1994. 51Overview, para 8. 52See Overview, paras 10-12, and Report, paras 11.40-49. 53Report, para. 11.5 S4Under which the port authorities of 15 European States cooperate in targeting ships for inspection under the various safety and environmental protection Convention regimes providing for port State inspection. 55The Report appears to have gained a good deal of inspiration from analogies with road traffic. See also, eg, para. 15.3. 5SShips would carry 'Paris MoU log-books' on board to facilitate this; ibid, para. 11.40; Recommendation 34. This system should be supplemented by occasional, surprise saturation inspections of all ships in a port, ibid, para. 11.66 and Recommendation 40. 5713utsee now ibid, para. 11.19, concerning the recent agreement to target "ships of Flag States that have a poor safety record as measured by their detention rate within the Paris MoU". 58Eg under the 1993 Vifia del Mar Agreement and the Memorandum of Understanding on Port State Control in the Asia/Pacific Region (Tokyo MoU): see ibid, para. 11.82; and IMO Doc. MSC 63/INF.4, 12 January 1994.

A European lawyer's view of the Governrnent response to the Donaldson Report: G Plant

Thirdly, "severe sanctions for sub-standard ships" are recommended "involving obligatory delays before they are allowed to load or discharge or even a denial of that right".6° Finally, self-targeting and sanctions are envisaged as applying to all ships in the same ownership, regardless of the condition of the individual vessels. 6~ Given that the relevant Recommendations represent a new approach to port State control, and that their implementation could be difficult and have disadvantages, such as for the competitiveness of U K ports if implemented unilaterally, 62 the Government has decided to take further time to consider them. ('3 The proposed scheme seems ingenious, but there is one objection in principle that might be made. It is generally accepted, with few dissents, that a State is free to deny or place conditions on access to its ports by foreign vessels, except in cases of distressJ '4 On the other hand, it is a principle strongly upheld in the 1982 Law of the Sea Convention (LOSC) 65 that, even where the port State inspection of a vessel indicates a violation of applicable environmental protection standards, the vessel and her crew are to be released promptly after inspection, subject to reasonable conditions, such as the posting of financial security; an a c c e l e r a t e d disputesettlement procedure is provided in order to reinforce this, and so guards against abusive restrictions on vessels' freedom to exercise their international navigation rights. 66 The port State is only entitled to refuse release of the vessel (or to make release conditional on her proceeding to the nearest appropriate repair yard), where her release "would present an unreasonable threat of damage to the marine environment ''('7 or it has ascertained that she is in violation of applicable international rules and standards relating to seaworthiness. 68 The object of these
sgset in terms of a percentage target (at present 25%) of all ships calling at its ports, these are arguably less of a deterrent to sub-standard ships than the new proposal, as well as problematic for 'last port of call' countries, like Finland: see ibid, para. 11.58-9. 6°Overview, para. 12. Recommendation 42 puts it less specifically: "The UK Government, with its Paris MoU partners, should take powers to allow a ban or a delay on the discharging or loading of cargo to be imposed on [certain] ships". 61Overview, ibid and Recommendations 34(b) (vi) and 42. 62Government Response, pp 20 and 22 and statement by John McGregor, op cit Ref 19, col. 677. 631bid, p 22 et seq. They are being considered in conjunction with Paris MoU partners, S4See R Churchill and A V Lowe, The Law of the Sea, Manchester UP, 1985, pp 46-48. 65Article 226 LOSC. 66Article 292. STArticle 226(1 )(c). 68Article 219.

two exceptions is restricted to permitting necessary repairs to be made, and the vessel must be released immediately they are made. Bearing this in mind, it is perhaps difficult to characterise sanctions involving obligatory delays in loading or discharging as such exercises in 'detention' and 'release' of a vessel. It is also difficult to foresee any realistic possibility that the LOSC provisions might be amended to permit such powers to be enjoyed by the port State. In addition, any obligatory delay in discharging will simply serve to delay the opportunity for the making of most repairs and so, in a sense, contradict the purposes of the two exceptions and of the port State in imposing sanctions in the first place/'9 There is also a practical difficulty with the suggestion that self-targeting and sanctions should apply to all ships in the same ownership or management. The average tanker fleet is now a mere 1.7 vessels, TM precisely because one-ship companies obviate any possibility of action being taken against sister ships; this recommendation could only reinforce that trend towards fragmentation and so would not, in the author's opinion, necessarily raise standards. Additional principal recommendations to deter and detect wrongdoing include: improved dissemination of ship/fleet standards to charterers and underwriters, so that they can place financial pressures on sub-standard vessels likely to be discriminated against under the abovem e n t i o n e d scheme; TM painting identification numbers on the decks and sides of ships in large characters; 7= and improved offshore surveillance. 73 There appears to be nothing wrong with any of these in principle; the freedom of navigation (still less other international rights of navigation) should not be seen as a freedom to navigate in complete anonymity regardless of the potential environmental threat that some ships _pose. TM The G o v e r n m e n t has accepted them,'-" while pointing out the need for international agreement in some cases and surrounding difficulties, including in obtaining IMO
G9Finally, it might be argued, though not strongly given parallels with SOLAS and MARPOL inspections, that none of this can be convincingly represented as a 'condition' for entry to the port, as the 'condition' is placed on the vessel only after it has arrived in port in good faith to load or discharge and has been found wanting after inspection by the port authorities. All of this is quite apart from the demurrage and other private law implications of the delay in loading or discharge. 7°Shell, Prevention of Oil Spills from Tankers, London, 1993, p 1. 71Overview, para. 13. See also in particular Recommendations 37-39 and 41. 721bid, para. 14, and Recommendation 66. 731bid, para. 15, and Recommendations 73-76. See also infra text at Refs 189-198. 74This is most forcefully recognised by the Report in para. 15.26. 75Government Response, pp 23-24, 38 and 44-46.


A European lawyer's view of the Government response to the Donaldson Report: G Plant

agreement to a renewed effort, the first having failed, to require the painting of identification numbers on ships. 7(~
(ii) Dissemination o f information to ship masters planning voyages The emphasis in this set of principal recommendations described in the Overview is upon enhancing the master's ability to make informed decisions about his environmental responsibilities. The principal measures suggested are: (a) the provision to ships making voyages to and from the U K of a clear, simply expressed Seaway Code designed to remind them, in one userfriendly volume, of the practical steps which they can take to reduce the risk of pollution and of the relevant regulations, 77 which the Government has accepted in principle; 7~ (b) the restoration of regional salvage capabilities, 79 which is also still under consideration; s° (c) the designation of Marine Environmentally High Risk Areas ( M E H R A s ) in limited locations ~1 where there is both a significant concentration of shipping and a high risk of environmental damage, which would be marked on Admiralty Charts and in the Seaway Code as a means of informing masters of the risk of exceptional damage in the event of his ship grounding, 82 which is still under G o v e r n m e n t consideration; 83 and (d) the strengthening of the existing duty to report accidents on board s h i p s Y combined with the showing by coastal States of a ~greater readiness to intervene where necessary, 8 which the G o v e r n m e n t has largely accepted, x(, The spirit of these recommendations is unimpeachable in itself, but one can make the following criticisms of the reasoning that led to the latter two. M E H R A s echo the emphasis in much of the

post-Braer debate on the particular need to protect the most environmentally sensitive sea areas from ship-source pollution. Being measures proposed for the defence of sensitive coastlines against such pollution, they are sensibly conceived in terms of both environmental sensitivity and the occurrence of significant ship traffic. In an area where there is already a confusing plethora of different types of 'special area', ~7 however, and also a great deal of information already marked on charts, ~ it is difficult to see how a new, essentially voluntary, system, reliant on masters' reactions to information supplied to them, will add to the possibilities of protection without making matters even more confusing. Well-intentioned masters will, indeed, react correctly to the information, in so far as commercial pressures do not prevent them from doing so, but those of sub-standard vessels may not. The G o v e r n m e n t accepts the shipping industry's view that to designate M E H R A s without establishing the concept internationally could cause confusion and undermine their value and intends to see rationalisation between the M E H R A and M E S A concepts in the EC before acting more widely. 8~ But international debate is already centred upon the development of another concept, Particularly Sensitive Sea Areas (PSSAs). If properly developed, this could come to comprehend all the positive aspects of M E H R A s as well as to grant to the relevant coastal State, under IMO supervision, exceptional prescriptive and enforcement powers specifically designed to suit the environmental needs of the sea area in

761bid, p 38. 77Overview, para. 16. See also the early part of Chapter 13 of the Report and Recommendation 50. ZSGovernment Response, p 29. A draft went out to consultation in December 1994. 79Overview, para. 19, and Recommendation 85. See also Report Chapter 20, esp. at paras 20.77-84. 8°Government Response, p 51. As to interim measures taken see op cit Ref 21. 81That is covering no more than 10% of the UK coastline: Report para. 14.125, The areas around Skomer Island, Pembrokeshire and the Isles of Scilly are given as 'obvious' examples, paras 14.70 and 14.74. 82Overview, para. 17. See also Report, paras 14.119-125 and Recommendation 59. 83Government Response, pp 33-34. 84Overview, para. 20, and Recommendation 71. See also Report, paras 15.72-78. 8SOverview, para. 20, and Recommendations 87-89. See also Report, paras 20.27-33. 86Government Response, pp 42 and 53-54.

8~For example (i) MARPOL special areas; (ii) 'special areas' under Article 211 (6) LOSC (which the Report says are 'potentially significant', at para. 5.37); (iii) 'protected areas' covered by three UNEP regional seas agreements, the 1982 Geneva Protocol concerning Mediterranean Specially Protected Areas to the 1976 Barcelona Convention for the Protection of the Mediterranean Sea against Pollution (New Directions in the Law of the Sea (Iooseleaf) Doc. J.20); the 1985 Nairobi Protocol concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region to the 1985 Convention for the Protection, Management and Development of the Marine and Coastal Environment of the Eastern African Region (P Sand, Marine Environmental Law in the United Nations Environment Programme, London, 1988, p 171); and the 1990 Kingston Protocol concerning Specially Protected Areas and Wildlife to the 1983 Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (W Burhenne (ed), International Environmental Law: Multilateral Treaties, Berlin, 1974, 990:85); (iv) World Heritage Sites under the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, Cmnd. 9424; (v) areas designated under the 1971 Convention on Wetlands of International Importance (Ramsar), Cmnd. 6465; (vi) Particularly Sensitive Sea Areas, as to which see text infra; and now (vii) EC 'MESAs', as to which see text op cit Ref 37. 88See Government Response, p 34. 891bid


A European lawyer's view of the Government response to the Donaldson Report: G Plant

question, and so could help to ensure that sub-standard vessels also take precautions. 9° Experts generally agree that the existing IMO Guidelines on PSSAs 91 need to be improved, and this is likely to involve their being tightened up (so that the concept applies only to truly environmentally sensitive areas) and the provision of a firmer legal base for them. Adopting a national system of M E H R A s and working towards their international acceptance would be both a distraction from and less effective than active participation in this international process and the designation and adoption by the IMO of PSSAs in appropriate sea areas adjacent to the U K coast. Australia's experience with its Great Barrier Reef Marine Park PSSA, the only one established to date, appears to have been positive. 92 The Overview argues, moreover, that M E H R A s are necessary because "the average ship master neither knows nor has the means of knowing, that the nature of the shoreline is such that if his ship grounded, for whatever reason, there could be risk of exceptional damage" (so far so good) "which might expose his owners and insurers to substantial liabilities". 93 It is in the last clause that the reasoning partially breaks down. A master might well be influenced to seek to avoid contingent liabilities by the knowledge that he is near a coast of particular economic value as an area for tourism, fish farming or the like, but he is hardly likely, given the limited possibilities for recovery of significant compensation for pure environmental loss, 94 to inconvenience himself to a great extent in this respect merely because the coastal area is important as a natural environment. Finally, the Report, while recommending the strengthening of duties to report to the coastal State any on-board faults that occur, does so from the basis of an overestimation of the strength of existing international legal obligations. It suggests that there is a duty under M A R P O L to report an incident causing or threatening pollution by oil or other noxious or hazardous substances to the nearest coastal State. 95 In fact M A R P O L does not specify the
9°See Plant Facilitating Commerce, Safety and Environmental Protection: The International Law of Maritime Navigation, Manchester, 1995 forthcoming, Chapter 17, Section 2. See now also the Report of the Third International Meeting of Legal Experts on Particularly Sensitive Sea Areas, IMO Dec. MEPC 36/21/4, 4 August 1994. 911MO Res. A.720(17), 6 November 1991, Annex: 'Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas'. 92See, eg, G Kelleher and C Bleakley, 'Declaration of Particularly Sensitive Areas', paper given at a Workshop on 'International Cooperation in Protected Area Management' (on file with author). 93Para. 17. 94See Plant, op cit Ref 90, Chapter 11, Section 3.4. 95Report, para. 10.15. The non-binding, IMO Res. MEPC.22(21 ) does specify that State.

State to which the report must be made, Article 221 LOSC clarifies matters hardly at all, and it is only the 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation, 96 which is at present limited to oil and oily substances, only entered into force on 13 May 1995 and has few Parties to d a t e s that specifies the nearest coastal State. 9s It is nevertheless encouraging to see that the U K should shortly accede to the Convention. 99 The Overview and Report are also concerned with financing its proposals and with value for money. 100 The Report generally favours applying the economic principles of the 'polluter (or potential polluter) pays' and the 'user pays', as far as possible, but suggests some exceptions, such as in relation to port waste reception facilities, the cost of which, it recommends, should be subsumed in general port dues, so as to encourage masters to use a service 'they are already paying for'. 101 The Government is considering this.

Other recommendations: the Report
The Report itself follows a different pattern. After its introductory chapters, which deal, inter alia, with questions of international law, it is structured around four so-called 'lines of defence' against pollution, 1°2 as follows: (1) Construction, operation, maintenance and inspection (Chapters 6-12, Recommendations 149); (2) Navigation, routeing and shore-based surveillance, together with insurance, compensation and other indirect aspects (Chapters 13-19, Recommendations 50-84); (3) Response to casualties (Chapter 20, Recommendations 85-89); and (4) Responses to unpreventable pollution (Chapter 21, Recommendations 90-94). It is worth discussing each in turn. In addition, as far as the introductory chapters are concerned, the most important features are the following: (a) The Report recommends that the U K extend its jurisdiction (as port and coastal State) to the maximum degree permissible under the relevant Conventions and that the G o v e r n m e n t pass enabling regulations, using port and coastal State jurisdiction, in areas pertaining to "the safety of navigation and regulation of maritime traffic, conservation of living resources and the
96UKTS Misc. 38 (1994), Cm 2671. 9719 as of 22 May 1995. 98See further Plant, op cit Ref 90, Chapter 14, Section 3.3.3. ~Government Response, p 56. 1°°See Chapter 22 and Recommendations 95-98. 1°1Report, paras 9.63-65, and Recommendation 27(e). ~°ZReport, para. 1.25.


A European lawyer's view o f the Government response to the Donaldson Report: G Plant

protection and preservation of the marine environment and the prevention, reduction and control of pollution thereof", not covered by specific Conventions. x°3 The Government had, of course, already started to move in this direction with its regional partners, TM and is now preparing secondary legislation under the Merchant Shipping (Salvage and Pollution) Act 1994 to implement this recommendation. ~°5 (b) The Report also recommends the UK Government to press the IMO to consider publishing information on the faults found during port State inspections on each Flag State's vessels in order to shame those with poor records into raising their standards. If this does not work, it suggests, IMO Conventions requiring the possession and carriage of certificates should be amended to permit States Party to refuse to recognise vessel certificates if the record of the Flag State was held by the IMO, or the port State without any dissent from the IMO, to justify it. 106 The Government has accepted this and introduced a paper for consideration in the I M O s Flag S t a t e I m p l e m e n t a t i o n SubCommittee (FSI) pressing for action against Flag States with poor records. 1o7 (1) Construction, operation, maintenance and

(a) Chapter 7 of the Report concerns improvements in ship design, construction, maintenance, equipment and reliability. It recommends in particular: (i) the mandatory carriage of survey history files by vessels other than tankers, l°s and the Government has accepted this in principle; 1°9 (ii) the inclusion of adequate quantitative as well as qualitative criteria in IMO guidelines for permissible delegation of work by governments to classification societies. 1~° The Government agrees that the EC Commission's approach in this respect, in its Port State Control Directive, 1H is preferable to the present IMO guidelines in Resolution A.747 (18) and will push for

it to be adopted in the IMO's FSI; 112 (iii) the rejection of mandatory age limits for ships, 113 to which the Government has agreed; 114 (iv) the subjection of vital shipboard systems to strenuous engineering analysis with the emphasis on safety, in preference to across-the-board duplication of systems; 115 and (v) the fitting of hull stress monitoring systems and voyage data recorders to certain categories of vessel, 11~ which the Government has accepted in principle, subject to the collection of further useful data over the next few years. 117 All of this is highly desirable and should not entail excessive cost. (b) Chapter 8 of the Report concerns the enhancement of ship operating and crewing. It recommends in particular that: (i) the 1978 Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) ~18 be amended and measures taken to ensure that its implementation is improved; H9 (ii) language provisions should be included in these amendments, there needing to be sufficient overlaps of language between the officers and crew to ensure that orders can be got through and understood, and, indeed, the formal adoption of English as the international language of the sea; 12° (iii) shore management should implement the ISM Code, in advance of its becoming mandatory in 1998, and trade organisations, like the International Chamber of Shipping and INTERTANKO, should operate quality managem e n t s y s t e m s f o l l o w i n g the ISO 9002 standard; lal (iv) the industry should consider the reasonableness of demands placed upon masters. 122 "[M]asters should not", for example, "have their freedom constrained by, say, an owner insisting that a particular route or speed should be maintained despite bad weather"; 123 and (v) the DoT should be cautious before introducing its new concept of One Man Bridge Operations at Night. ~24 The Government has accepted all of these Recommendations, 12s
112Government Response, pp 7-8. l~3para. 7.69; Recommendation 11. ~14Government Response, p 8. ~15para. 7.71. ~16Para. 7.64 and Recommendation 13. This would help in the planning of vessel maintenance, help the master to navigate so as to minimise hull stresses and 'concentrate the minds' of those on the bridge whose actions were being recorded. ~TGovernment Response, pp 9-10. 118UKTS 50 (1984), Cmnd. 9266. 119Recommendation 19. ~2°Paras 8.49-51 ; Recommendation 20. ~a~Para. 8.10--11; Recommendation 18(a). 122Recommendation 18(b) 123para. 8.16. 124para. 8.36; Recommendation 18(e). ~25Government Response, pp 11-15. See also infra Ref 212, para. (i).

1°3Report, para. 5.89; Recommendation 102. ~°"Especially through the North Sea Ministerial Conferences process; see, eg, the Paris Declaration on the Coordinated Extension of Jurisdiction in the North Sea, 22 September 1992, 23 LOS Bulletin, 1993, p 65. ~°5Government Response, p 62. l°6Para. 6.28 and Recommendation 1. In para. 11.26, moreover, amendments to IMO Conventions are also suggested, if the granting of certificates becomes a practice of deceit through the obtention of fraudulent certificates. 1°71MO Doc. FSI 3/9; see also Government Response, pp 3-4. ~°SPara. 7.24; Recommendation 4(d). Under MARPOL amendments operative since 1 July 1995, survey history files already have to be carried by oil tankers over 5 years old. ~°gGovernment Response, p 5. l~°Para. 7.36-37; see also Recommendation 5. 1110p cit Ref 39, para. (e).


A European lawyer's view of the Government response to the Donaldson Report: G Plant

albeit only in principle where international agreement is requisite, pointing out in particular that a diplomatic conference to adopt revisions of STCW was already scheduled for Summer 1995, which, in the event, adopted substantial amendments to STCW. All this again is desirable, but, in so far as it is based on voluntary compliance by industry, as opposed to effectively implemented internationally agreed standards, it is hard to see how it will in practice capture the sub-standard ship. In addition, this chapter suggests that the G o v e r n m e n t take powers to tackle a specific local problem, 'parking' in UK territorial waters by vessels not engaged in innocent passage and ship-to-ship transfers there, beyond prescribed harbour limits (and so the scope of present controlling powers), of potentially polluting cargoes and bunker fuel. TM The G o v e r n m e n t has in response drafted amendments to the (Transfer Records) Regulations 127 so as to prohibit trans-shipments within 9 miles of the shoreline and to define a single trans-shipment area in Lyme Bay; these have been sent out for consultation. 128 (c) Chapter 9 of the Report makes the following recommendations about non-accidental polluting discharges: (i) more stringent and effective controls should be adopted on discharges of noxious liquid wastes u n d e r A n n e x II of M A R P O L ; r29 (ii) the North and Irish Seas and English Channel should be considered for eventual designation as M A R P O L (Annex I) special areas for oily wastes and adequate reception facilities put in place by North Sea States, as a necessary preliminary to this; 13° and (iii) disincentives to using port reception facilities should be r e m o v e d 131 including, through placing a statutory obligation, to be policed by the DoT, on port and terminal operators to ensure the provision of adequate facilities, 132 and through the subsuming of charges into general port
~2eParas 5.29 and 8.81. See also: Recommendation 102, paras 14.85 and Recommendation 64 (on Lyme Bay); and Chapter 17 and Recommendation 77 (on fish factory ships operating in UK waters). 127To be made under S.35(1) Merchant Shipping Act 1988. 128See Government Response, p 37. ~29Recommendation 25. ~3°Para. 9.9; Recommendation 22. ~3~Paras. 9.41-65; Recommendation 27. In particular floating facilities which do not interfere with loading or discharge schedules should be used where possible; customs and excise charges on discharged waste should be consistently applied (indeed, the implication appears to be that they should not be charged at all); and high charges for the landing of small amounts of waste ought to be avoided. Otherwise, it is often easier for the master to take the view that it is more convenient and profitable to throw waste over the side at sea, there being little danger of detection. 132para. 9.59; Recommendation 27(a).

dues.L33 An interesting point raised is the frequent imposition by land-based disposers of ship-generated garbage of onerous conditions concerning its sorting into different categories before they will take delivery. 134 As the disposers are seeking to comply with statutory obligations drafted with land-based, point-source industrial concerns in mind, these requirements may be too sophisticated for ships, so that masters may prefer the easy solution of throwing the garbage over the side at sea. This personifies this country's past failings in integrating its environmental protection regimes across media and across jurisdictional boundaries, and in particular between land- and river-based controls on the one hand and those in coastal zones on the other. 135 The G o v e r n m e n t accepts the first of these recommendations, 136 but thinks the second and third need further study, thought and consultation before any action is taken. 137 It pointed out that M A R P O L special area status was already under discussion among North Sea States, 138 and that one concern is that designation would simply transfer discharges to the outer boundaries of the area designated.13'~ If, moreover, it put in place the reception facility scheme suggested, it would do so in the teeth of strong opposition from port and terminal operators, who argue that a similar scheme in Germany has not encouraged higher levels of use of such facilities. 140 (d) Chapter 10 of the Report is devoted to hazardous and noxious substances, in relation to which the Inquiry was satisfied that existing standards are adequate, although it did recommend the development of a workable system for the electronic tagging of containers containing such substances, in order to allow their recovery when they are lost at sea. 141 The Government has accepted this in principle, and agreed to
laaPara. 9.63-65. As has been explained, supra text at No 101, this is to encourage masters to use a service they have 'already paid for'. 134See now Recommendation 27(a)(iii). 135See G Plant and Lisa Wilder, 'What Environmental Institutions Does the UK Need?' Basic Document of the LSE Centre for Environmental Law and Policy Conference of that name, 13 July 1992, at 11, 17 and 20 (to appear in Plant and Wilder (eds) The New Environment Agency: What Environmental Institutions Do We Need? Graham and Trotman, 1996 forthcoming) (on file with author). 136Government Response, p 17. Amendments to Annex II are being considered in the IMO. ~371bid, pp 15-16 and 18. ~381ndeed, the Fourth Ministerial North Sea Conference of May 1995 agreed to seek Annex I special area status for the North Sea: Declaration, para. 44 (i). 139Government Response, p 15. 14°lbid, p 18. ~41Para. 10.13; Recommendation 30.


A European lawyer's view of the Government response to the Donaldson Report: G Plant consider supporting the international introduction of electronic tagging of containers carrying the most hazardous or polluting substances, but only if current moves to make mandatory the existing voluntary IMO code of practice on the stowing and securing of2cargo prove inadequate to solve the problem. As to strengthening the system of port State control, the essence of the proposals set out in Chapter 11 of the Report are discussed above, but one feature of these deserves comment here. The Report recommends, and the G o v e r n m e n t accepts, that the U K should take an expansive definition of 'port' for the purposes of enforcement jurisdiction, to include in it all areas within harbour authority limits, whether or not these are a 'port '143 in the sense of offering either shelter from the elements or loading and discharge facilities, even where these limits extend several miles out to sea. 144 This is not objectionble if the ships in question are subject to the so-called 'destination principle' of jurisdiction, because they have used or are there to use the port facilities, but care should be taken, as the G o v e r n m e n t recognises, 145 to exclude passing vessels in innocent or transit passage and not using or intending to use those facilities. 146 (2) Navigation, routeing and shore-based surveillance, plus insurance, compensation and other 'indirect' aspects concerned (a) In Chapter 13, entitled Navigation and Guidance to Mariners', the Report recommends the following: (i) active and frequent checks on whether vessels have up-to-date charts, corrected up to date, as part of port State control, ~47 which the G o v e r n m e n t is now considering; ~4s (ii) the correction of distance tables used by mariners to take into account the extra distance r e q u i r e d by t h e f o l l o w i n g o f r o u t e i n g measures, 149 on which the G o v e r n m e n t is consulting with B P ] 5° the main British author of such tables; 151 (iii) persuading shipowners, through the IMO, to give clear guidance to masters on the safety margins they should observe to take account of unforeseen eventualities, such as breakdown near and drifting onto d a n g e r o u s or e n v i r o n m e n t a l l y v u l n e r a b l e coasts, ~52 which the Government has accepted; 153 and (iv) the updating of SOLAS to require the fitting of electronic position fixing equipment, t54 in preference to obsolescent direction finding equipment, and the provision of batterypowered back-ups for these (in addition to emergency electrical systems) 155 to operate during total electrical failures, ~5° which the G o v e r n m e n t has also accepted. ~57 Finally, the Report rejects the concepts of compulsory deep sea pilotage ts~ and tanker escort, 159 and the G o v e r n m e n t Response, sensibly, does not seek to re-raise these issues. (b) Chapter 14 of the Report, on ships' routeing, describes the primary purpose of routeing as enabling ships to follow those routes where they are least likely to be involved in a collision, grounding or other incident; the second purpose is keeping them a certain distance offshore just in case they get into trouble; 16° and the third as keeping them them out of environmentally sensitive areas. ~ It rejects as unworkable the keeping of potentially polluting vessels at fixed distances offshore, in place of ships' routeing,~62 and there is, quite correctly, nothing in this G o v e r n m e n t Response to contradict this. The Report then examines the adequacy of the existing ships' routeing measures around the U K coast and proposals for their amendment. 163 While it is content with the new arrangements in Scotland, 164 it is concerned by the omission of
~SlSee BP Shipping Ltd, BP Marine Distance Tables, London, 1991. 152Para. 13.40; Recommendation 51(c). la3Government Response, p 29. ~54That is GPS or SATNAV: para. 13.50; Recommendation 53(a). ~55para. 13.54; Recommendation 53(b). ~SSpara. 13.51; Recommendation 53(b). 157Government Response, p 30. It is helping draft amendments to SOLAS Chapter V to this end. ~58para. 13.66. This, it says, besides being difficult to operate in practice, will not necessarily add to safety and may reduce it. See now Plant, op cit Ref 90, Chapter 11, Section 1.3. ~59para. 13.80. To be effective such tugs would have to be full scale salvage tugs, and so prohibitively expensive. See now Plant, ibid ~S°lt notes that, of course, these two aims can conflict: para. 14.2. ~6~lbid For further discussion of ships' routeing and the law see Plant, op cit Ref 90, Chapters 9, 10 and 16, Section 2. ~62para. 14.116. New Zealand now operates such a system. ~63paras 14, 17-74. 1641t:supports the recent IMO changes to the areas to be avoided around Shetland and the new recommended routes in the Fair Isle Channel (para. 14.33-35, and see MSC 63/7/18, 25 March 1994); accepts the present arrangements concerning the Minch

~42Government Response, p 19. 143Or permanent harbour works or roadstead or offshore terminal: cf Articles 11, 12, 25(2) and 218-220 LOSC; see also EC Port State Control Directive, op cit Ref 39, para. (e). ~**Paras 11.9 and 17.36-43. Cf Recommendation 102(e). 145Government Response, p 62. 146Where the exercise of port State jurisdiction must not hamper, deny or impair their rights: Articles 24, 42(2) and 44 LOSC. ~4ZPara. 13.24; Recommendation 45(d). It is a requirement of SOLAS reg. V/20 that ships have on board charts adequate for the voyage on which they are engaged. ~48Government Response, p 26. ~49para. 13.39; Recommendation 51(b). The idea is to prevent masters being placed under undue pressure by owners or operators questioning the time and fuel used on the basis of distance tables reflecting the shortest geographical distances between two points. ~5°See Government Response, p 29.


A European lawyer's view of the Government response to the Donaldson Report: G Plant

the North Channel and South West Wales traffic separation schemes from the areas for which the U K sought IMO approval for coverage by voluntary ship reporting systems; 165 it notes that these are routes more frequently travelled and e n v i r o n m e n t a l l y vulnerable than even the Minch. 166 It is similarly concerned with the Skomer/Grassholme Islands gap near Milford Haven and with the Isles of Scilly,167a The ships' routeing systems the Report contemplates have two significant characteristics, as follows: (i) They are all voluntary. An amendment to SOLAS Reg. V/8 to permit routeing systems to be made mandatory in appropriate cases has recently been adopted by the I M O , 167b but the Report suggests that "voluntary routeing measures should be made compulsory only if there is evidence that there is a significant difference in the level of observance of voluntary and mandat o r y m e a s u r e s " . 168 The U K G o v e r n m e n t agrees, 169 and has taken measures to research the extent to which masters accept IMO-backed routeing advice. 170 The Report goes on to suggest that "Port State j u r i s d i c t i o n . . , provides the best means of improving observance of routeing measures". 171 In the absence of a specific international agreement bestowing such jurisdiction on port States, however, it is difficult to see how this is so. 172 The Government is happy to investigate the feasibility of making information on operational contraventions available on the Paris MoU S I R E N A C database, ~73 is considering the possibility of asking for Paris MoU inspections to be

and the deep water route 'West of the Hebrides' (paras 14.3961), subject to some amendments (including an extension of the deep water route: see Recommendation 61 (a) and (b)), which the Government accepts (Government Response, p 35); and endorses the new voluntary ship reporting schemes in Scottish waters: para. 15.41. lSSSee Recommendation 62(a). 166Paras 14.64-69. ~67aparas 14.70-74; Recommendations 62(b)-(d) and 63. 187blMO Res. MSC.46(65). ~88Para. 14.94; Recommendation 55. 169Government Response, p 32. ~7°See ibid pp 32 and 43 (information derived from the voluntary MAREP schemes operating around the Isles of ScUly, in the Minch and in Pentland Firth since November 1993 suggest a 99% compliance rate); also IMO Doc. NAV 40/4/4, 14 June 1994. 171Paras 14.91 and 14.102. See also Recommendation 39, 45(f), 60 and 72(b). 172How can a port State properly make compliance with a routeing scheme outside its waters a condition for entry to its ports? Article 218 LOSC, moreover, which is perhaps the widest port State jurisdiction provision in any treaty, but which probably does not have international customary law status (see Patricia Birnie and A E Boyle, International Law and the Environment, Clarendon Press, Oxford, 1992, p 282) applies only where the breach has resulted in a polluting discharge. ~73Government Response, p 24.

extended to required demonstrations from chart and log of the routes followed on the inward voyage to port 174 and has instructed HM Coastguard to ask for explanations of contraventions by ships reporting in to it, 175 but it does not consider it proper to extend special (selftargeted) port entry reporting conditions to such matters, as they are not connected to the physical condition of the ship. 176 (ii) The routeing measures suggested are all to be IMO-approved. The Report "accepts the Government's view 177 that only routeing measures agreed internationally through the IMO have any chance of being observed by ships of all flags, and that any development of routeing measures is best conducted through the IMO. Unilaterally applied routeing measures, imp l e m e n t e d through port State jurisdiction, would inevitably be second best, because of the severe limits on their enforceability [, although t]here may still be some scope for them (footnote added)". 178 This reasoning, with respect, is not entirely persuasive, at least in respect of schemes lying entirely within territorial or internal waters. It is clear that IMO adoption of a scheme can only help, but Article 22 LOSC makes it clear, for example, that, in waters to which the right of innocent (as opposed to transit) passage applies, the coastal State is free to prescribe and enforce rules and regulations governing routeing systems and need only take into account the IMO's recommendations in doing so. (c) Chapter 15 of the Report, entitled 'Identification and Reporting', makes many recommendations on ship reporting systems. It stresses that radio-based systems ought to be largely superseded by inexpensive automatic reporting systems. These would entail the compulsory fitting of on-board transponders capable of automatically communicating all the necessary information to interrogating shore-based installations. Radio-based systems would then, it is assumed, assume a residual, back-up role. It would also have a useful role in establishing direct, interactive communication between ship and shore, for example at the time of the vessel's entry into the shore station's zone of operation, when the shore authorities will have the opportunity to ask about any potential problem which might not be a u t o m a t i c a l l y conveyed via transponder. 179 The Government agrees and has

1741bid, p 26. 1751bid, p 43. 1781bid, p 34.
177Now expressed in ibid, p 32. 178Para. 14.91. 179See paras 14.49-53.


A European lawyer's view of the Government response to the Donaldson Report: G Plant

taken action accordingly.~8° The Report goes on to accept that the EC 'Pre-Entry Reporting' Directive 181 might be useful, 182 although it prefers the IMO's traditional approach to ship reporting, based on (interactive) ~8-~ ship-to-shore communication as vessels enter the zone of operation, adopting mandatory systems ~84 only where clearly necessary, rather than the E u r o p e a n approach of 'pre-entry' reporting, by radio, ~85 before leaving the previous port of call. It is also sceptical of the proposed E U R O R E P Directive. ~6 The Government agrees with this approach and notes the criticisms of the proposed Directive, the consistency of which with international law is doubtful 187 and negotiations on which are continuing• 188 (d) Chapter 16 of the Report gives three purposes for shore-based surveillance, (including tracking) of offshore shipping traffic: the facilitation of emergency aid; pollution control; and policing and detection of wrongdoing. =89 It rejects the concept of positive management of ship movements by vessel traffic services (VTS) systems, the nearest marine equivalent to air traffic

control, as impracticable and undersirable. It states: 19o The number of variables involved in making decisions on ship manoeuvres is so high, the likelihood of unreported changes in some of them (such as the location of sandbanks) is so great, and the difficulty of ensuring that all craft are covered by a scheme is so large, that it has seemed essential to leave the final decision to the person in control of the ship. The usefulness of vessel tracking, however, is only recognised for policing purposes where there is a certain density of traffic ~91 or limited sea room and 'conflicting movements' of that traffic. 19e The G o v e r n m e n t agrees and thinks that, in waters around the UK, only the Dover Strait qualifies. 193 Most mariners and many shore-based marine professionals would agree with this assessment. On the other hand, the European Commission's attachment to mandatory coastal VTS as part of the answer to the problem of ship-source pollution in Community waters 194 is in sympathy with some recent legislation in a number of Member (and other coastal) States influenced by strong environmentalist lobbies, particularly Italy. 195 If the technical problems of vessel identification and target definition ~96 can be resolved and an acceptable delineation of responsibility and liability between shore authorities and shipping interests found, 197 the maritime community's attitudes towards mandatory coastal VTS may change, at least where they operate in particularly sensitive areas and are seen as a means of forestalling unilateral claims even more restrictive of international rights of navigation. 198
• •

la°See Government Response, p 39. Indeed, it singles out its proposal for the mandatory fitting of transponders in the IMO (see IMO Docs NAV 39/4/9 and MSC 64/9/2, 9 September 1994, and 64/INF.8, 14 October 1994, and the IMO's favourable response in MSC 64/22, 2 December 1994, para. 9.40) as a particularly important example of its leadership on safer seas and cleaner ships: see further op cit Ref 26. ~a~Op cit Ref 39, para. (a). a2For example, by permitting shore authorities to obtain information on the proposed routes of ships bound for Community ports with a view to persuading them to use safer routes: para. 15.43. 183Where there is a high level of interaction, the system is more correctly described as a vessel traffic services (VTS) system: see Plant, op cit Ref 90, Chapter 11, Section 1.2. la4When new SOLAS Reg. V/8-1 comes into force, on 1 January 1996, in accordance with IMO Res. MSC.31(63), ship reporting may be made mandatory in such zones, where appropriate, on the basis of guidelines and criteria for mandatory ship reporting systems, approved in IMO Res. MSC.43 (64). As to when mandatory systems might be otherwise lawful, see Plant, ibid, Chapter 11, Section 2. ~85Recommendation 70(c) encourages the UK Government to persuade the EC Commission to think in terms of transponders, rather than radio. ~860p cit Ref 39, para. (f). See para. 15.68; also paras. 15.45-67 and 15.69-70. ~87The EC's Economic and Social Committee appears to be of the view that new SOLAS Reg. V/8-1 can and should be used to require all entering ships carrying dangerous cargoes, whether calling at European ports or not, to report in when they enter a zone 150 nautical miles from shore: Opinion, 94/C 295/06, 1 June 1994; OJ C.295/28, 22 October 1994. But the SOLAS amendments are not intended to authorise mandatory ship reporting in such a huge zone. See also Plant, 'Safer Ships and Cleaner Seas: A Review Article on Lord Donaldson's Inquiry into the Prevention of Pollution from Merchant Shipping', 9, I.J.M.C.L. (1994) pp 535, 551-552. ~aaGovernment Response, pp 40-41. ~a9para. 16.1

19°At para. 16.24. For further discussion of VTS see Plant, op cit Ref 90, Chapter 11. 191About 20 large vessels or many more smaller vessels passing through each day is suggested. ~gZPara• 16, 27-28. 19aAIthough it is also conducting a programme of radar surveys to secure a better picture of shipping movements off the UK coast elsewhere. Government Response, p 44. 1941n Article 6 of the Proposal for a EUROREP Directive, op cit Ref 39, para. (f). 195Italy's Law No 220 of 1992 (Gazetta Uficiale della Republica Italiana, No 62, 14 March 1992, p 3) empowers the Minister of Merchant Marine to require ships to follow movement instructions in VTS zones and to register every movement with the relevant VTS station; apparently, this is not restricted to territorial waters. See further Plant, op cit Ref 90, Chapter 11, Section 2.2. 196See, eg, para. 16.38. ~97para. 16.62 recommends that Coastguards should warn ships of impending infringements of the Colregs and "the DoT should accept the principle that on rare occasions Coastguards should give navigational advice, and that it may be impracticable for them to seek the assistance of an expert" and that they should not be constrained from doing so by fears of personal liability; see also Recommendations 94(d). ~9aAs to this see Plant, op cit Ref 7, generally and Plant, 'Mandatory Coastal VTS and the Alternatives: The Road Ahead', Safety at Sea International, July 1994, pp 23, 25.


A European lawyer's view of the Government response to the Donaldson Report: G Plant (e) A n u m b e r of proposals on control of fish factory ships operating in U K waters follow in Chapter 17, w h i c h t h e G o v e r n m e n t is considering; 199 Chapter 18 makes a n u m b e r of recommendations, based on the notion of enlightened self-interest, to the marine insurance industry, 2°° as well as a call for international action to m a k e third party liability insurance m a n d a t o r y for potentially polluting vessels under the 1976 Liability Convention, e°l which the G o v e r n m e n t has acted upon; 2°2 and Chapter 20 is devoted to other liability and compensation questions. Its principal recommendations, besides ratification of the 1992 Protocols to the C L C and Fund Conventions, 2°3 are the monitoring of their deterrent effect, 2°4 the raising as necessary of limitation levels and of the standards for breaking them, 2°5 and the continuation of efforts in the I M O to achieve a liability regime governing hazardous and noxious substances not covered by other joint compensation schemes. 206 (3) Response to casualties A related r e c o m m e n d a t i o n in Chapter 20, on ' E m e r g e n c y Towage and Salvage', is that the I O P C Fund should treat private salvage operations as c o m p e n s a b l e 'preventive measures', even where the primary purpose of the operation is not to prevent pollution but to save property; 2°7 the G o v e r n m e n t is examining this, in collaboration with the Fund. 2°s If accepted, this, a n d t h e o t h e r r e c o m m e n d a t i o n s on salvage, 2°9 should render salvage operations in
199Government Response, p 47. 2°°See also Recommendations 78-79. 2°1The 1976 Convention on Limitation of Liability for Maritime Claims, Cmnd. 7035. See also Recommendation 84(d). Amendments to this Convention are being considered in the IMO. 2°21nfra Ref 212, para. (iv). 2°30p cit text at Refs 12 and 13. z°4Para. 19.20-21. =°5Recommendations 80, 82 and 83. a°6Para. 19.43-44; Recommendation 84(a)-(c). 2°TPara. 20.55; Recommendation 86(d). This is a sensible proposal, given that this is usually the case and that salvors' possibilities of recovery for environmental measures taken are limited: Catherine Redgwell, 'The Greening of Salvage Law', Marine Policy, Vol 14, 1990, p 142 and Plant, op cit Ref 90, Chapter 14, Section 3.3.2. Courts and arbitrators, in fixing salvage awards, are also recommended to take greater account of the cost to private salvors of maintaining stand-by facilities: para. 20.75; Recommendation 80. 2°SGovernment Response, p 53. 2°9Owners' standing instructions to their masters should, it is suggested, authorise him to call for assistance on his own authority: para. 20.133; Recommendation 86(a). This is accepted by the Government, as conforming to existing domestic law implementing the 1989 Salvage Convention, and will help avoid another Amoco Cadiz: Government Response, p 52. Once salvage assistance is requested, moreover, it is recommended that the requesting ship should be deemed by statute to be in peril and so will be liable to a salvage award (and any incidental

areas close to the U K more profitable and so facilitate the r e c o m m e n d e d revival of salvage coverage discussed above. (4) Responses to unpreventable pollution Finally, Chapter 21 contains a n u m b e r of recomm e n d a t i o n s c o n c e r n i n g t h e c l e a n - u p of pollution. 21°

Only an experienced lawyer and former Judge with extensive experience of maritime law, and with the able assistance of two knowledgeable technical Assessors, could have produced as comprehensive and persuasive a R e p o r t as this concerning the polycentric issues tied up with the protection of coasts from ship-source pollution. The R e p o r t is already shown to have served as an important source of inspiration for decision makers, not only in the U K G o v e r n m e n t but m o r e widely. The document is by no means conservative or a 'white wash' and it has resulted in the U K taking the lead in E u r o p e , 211 the I M O 212 and the 1LO. 213
arrests) even if she manages to get under way before assistance arrives: para. 20.138; Recommendation 86(f). This would put an end to the kind of abuse whereby tanker masters can keep salvage vessels standing by, at great expense to the salvor, just in case they cannot fix the fault themselves, while prevaricating about agreeing a contract. The Government is considering the need for this: Government Response, p 53. It is not clear, however, how a UK statute to this effect could be very effective internationally. Although most salvages are conducted under Lloyd's Open Form of Salvage Contract, and so are subject to arbitration in England where such a statute could be made applicable, jurisdiction nevertheless depends upon the acceptance of that contract by the master of the ship in question. If, alternatively, the jurisdiction of the Admiralty Court were relied upon, such a statute would involve an assertion of extraterrestrial jurisdiction over foreign ships uncharacteristic of the UK. 21°See also Recommendations 90-93 and Government Response, pp 54-57. 2111n particular: (i) in the EC, it has: strongly supported the adoption of the Directive on Classification Societies and Regulation on SBTs, and pressed for the text of the Port State Control Directive, now agreed (as to all of which, see op cit Ref 39) to be flexible enough to take account of the future developments arising from improved targeting of sub-standard ships (Government Response, p 20); proposed a Europe-wide monitoring of maritime traffic flows under the Trans-European Network project: ibid, p 32; and sought harmonisation of the MEHRA and MESA concepts; (ii) in Paris MoU meetings, it has submitted papers on: the Report's proposed new port State enforcement scheme to the Port State Control Committee, which accepted a proposal for a weighted Targeting Factor designed to enhance the targeting of potentially high risk ships (ibid, p 22, and see op cit Ref 57); and is investigating the feasibility of making details of operational contraventions of routeing advice available on the SIRENAC database; (iii) in both, it intends to consult on extensions of inspection charges to be levied on individual ships in proportion to their individual propensity to pollute (ibid, p 59) and on a possible new fund to pay for emergency response (ibid, p 60); and (iv) in the Anglo-French Navigation and Accident Technical Group, it initiated discussions on improving the effectiveness off


A European lawyer's view of the Government response to the Donaldson Report: G Plant

Whether or not the IMO, as well as the EC, will adopt a higher profile, including in compliance matters (with all its political consequences for the Organisation), remains to be seen, however. In two fundamental respects, moreover, the Report confines itself to a traditionalist approach, as does the UK Government in following it. First, it calls for no radical changes in jurisdictional competencies of port of coastal States; it recommends
traffic surveillance in the Dover Strait through the UK VTS system there, the Channel Navigation Information Service (and its French equivalent--as to both of which see Plant, op cit Ref 90. Chapter 11, Section 1.4): ibid, p 37-38. 2121n particular: (i) in the Organisation generally it has been pressing for: a lifting of the ban under SOLAS Reg. 1/21(b) on the publication of the results of accident investigations; the fitting where appropriate of voyage data recorders (Government Response, p 10); the revision of the STCW Convention to include the use of function-related elements to direct training to specific on-board tasks, requiring flag States to issue their own certification to seafarers, strengthening of the system of reporting any dispensations and requiring a common language on board (ibid, pp 13-14). It is also planning, following the gathering of more experience and/or consultation, to introduce papers on: the use of high tensile steel in construction (ibid, p 7); on-board testing and retention of bunker samples in connection with fighting the contamination of fuel oil (ibid, p 9); and revision of the guidelines in Res. A.535(13) on forward emergency towing arrangements (ibid, pp 10-11); (ii) in the MEPC, it is planning, when it has sufficient feedback to be able to make practical proposals, to present a paper urging the introduction of an effectivenessmonitoring system for MARPOL requirements (ibid, p 5); (iii) in the MSC and NAV Sub-Committee, it is pressing, with its EC Partners' support, for a SOLAS amendment on the mandatory fitting of transponders as soon as possible; (iv) in the Legal Committee, it is: playing a major role in efforts to negotiate an HNS Convention; and proposing consideration of compulsory liability insurance under the 1976 Limitation Convention: IMO Doc. LEG 71/3/2, 18 July 1994, and LEG 72/4, 20 January 1995; (v) in the FSI, it is: pressing for action against Flag States with poor records and a review of Res. A.739(18); and planning to propose, with EC Partners' support, treaty-based improvements to marine accident investigation (ibid, pp 27-28); and (vi) in the Ship Design and Equipment Sub-Committee, it is planning to submit proposals on improved ship inspection procedures (ibid, p 8). It also submitted a paper to the IOPC Fund (see FUND/ WGR.7/21, 20 June 1994, para. 7.2.11-.17) on, and pressed Member States to agree a formula for the uplift (in liability proceedings) of any marginal costs so as to reflect a reasonable proportion of fixed costs (ibid, p 48). In addition, it announced its willingness to work with other States on any necessary revision to the Fund Convention (or, indeed, the CLC: see IMO Doc. LEG 71/INF 3, 4 October 1994) to prevent the shipowner's right to limit liability providing excessive protection to reckless operators, ibid. Lastly, it initiated discussions on whether or not there are types of salvage which have a useful result but are denied compensation under the Fund's rules. Finally it has taken legal advice on the compatibility of its acceptance of Recommendation 87 (on powers of intervention against casualties) with the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Damage (Cmnd. 6056) and its 1973 Protocol (Cmnd. 8924), and appears to contemplate seeking their amendment, if necessary: ibid, p 54; and see op cit Ref 86. 2131n particular, it is playing a prominent role in the current revision of ILO Convention 147 concerning minimum standards on merchant ships: Government Response, p 12.

that the UK take and exercise the maximum jurisdictional powers permitted under Public International L a w , but it does not contemplate major changes to that law itself. Sufficient flexibility is built into the LOSC text to permit greater emphasis to be placed on environmental protection from ship-source pollution, although it may be that it ultimately favours navigation at the expense of the environment. Second, it places emphasis on voluntarism and enlightened self-interests, backed up with sanctions only where absolutely necessary. This is no doubt the best way to encourage greater caution and compliance with environmental protection measures by good masters, and even they are often busy with more pressing concerns, but not the poor or unscrupulous master. Binding measures, backed up with effective enforcement, may be necessary at certain times or in certain locations, as a normal measure. These two points are perhaps best illustrated by the proposal to establish M E H R A s . While understandably stopping short of a complete overhaul of the navigation/environmental protection balance in the LOSC, 214 the international community has already gone beyond mere voluntary informational systems for traffic regulation. Besides accepting the principles of mandatory routeing and ship reporting, in appropriate places and with IMO approval, 125 it is actively discussing the possibility of developing the PSSA concept and placing it on a firmer legal basis. Indeed, in relation to the existing PSSA in Australia, the IMO has already called upon Member States to "recognise the need for effective protection of the Great Barrier Reef region and inform ships flying their flag that they should act in accordance with Australia's system of [compulsory deep sea] pilotage for merchant ships". 2r6 While this stops short of fully endorsing a system of compulsory pilotage backed up by criminal penalties, it comes very close. Compulsory deep sea pilotage is probably not appropriate off the UK (nor, indeed, is it in most waters), but other mandatory measures might be, whether these relate to such 'traffic' matters, or to discharge prevention and control, or even to construction, design, equipment and manning standards, 217 at least in the most environmentally sensitive sea areas. Acknowledgement The author wishes to thank Stefan Lindstrom for his research assistance.

214As to this see Plant, op cit Ref 90, Chapter 17, Section 1. 2150p cit, text at Refs 90-92.
2161MO Doc. MEPC 45/30, 16 November 1990. 217As to all the possibilities, see Plant, op cit Ref 90, Chapter 17, Section 2.


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