Napoli - wake-up call for industry

Charles Hattersley is a marine expert and partner in leading law firm Ashfords and operates out of its Plymouth office. After 15 years at sea, he trained as a lawyer in the City of London and since 2006 has been developing and leading Ashfords' fast expanding marine and transport department.

The recent Inquiry commissioned by Devon County Council has raised a number of important points for the shipping, and in particular container, industry which should have national and international ramifications.

The "Exxon Valdese" apart, this was the single most expensive casualty in the history of world shipping. This in itself is a staggering statistic and was, in most of the maritime community's view, a compelling reason for the government to hold a national inquiry. After all, if such an inquiry were not held in an incident such as this, when would the government authorise such an important investigation and/or inquiry. As it was, Devon County Council stepped up to the plate and they, together with local authorities and other emergency and voluntary organisations, have had to incur very considerable and unrecoverable costs as a direct result of this highly commendable action.

In fact what has happened is that the local community and ratepayers of the South West have funded (with very little opportunity for recovery) a detailed and expensive piece of work, the only benefit of which may be to avoid such casualties in the future. It also highlights the very considerable deficiencies extant, not only in the way containers are transported around the world, but also the compensation and costs regime that exists in order to deal with such incidents. Further, the incident has highlighted the need, for example, to amend the country's National Contingency Plan for marine pollution from shipping and offshore installations.

It must not be forgotten that as well as the Devon County Council, the local authorities are so concerned about casualties and incidents around the coast of the UK that they commissioned a report to deal with such issues as:

• compensation costs recovery and communications mechanisms during and following marine incidents;
  
• the position of local government in respect of international conventions and legislation relevant to the shipping industry;
  
• the opportunity for local government to influence and, where appropriate, amend the National Contingency Plan; and
• clarification of local authorities' powers and duties with particular reference to different tiers of local government.

Such a report and inquiry by the DCC should be seen in light of the increase of incidents near the shoreline and ports of the United Kingdom. For example, in the years between 2002 and 2006 the Maritime and Coastguard Agency ("MCA") recorded in excess of 2,700 incidents involving commercial shipping and in excess of 11,400 in relation to inshore leisure craft, which in turn resulted in 540 deaths and 526 occasions on which oil was released into the maritime habitat. In the case of one major UK port, there were 45 incidents and 93 near misses. This cannot be allowed to continue and the DCC Inquiry has highlighted a number of areas where important and immediate changes could, and should, be made.

First, a comprehensive and detailed legislative framework (similar to that that currently exists in the oil industry for persistent oil) should be set up to ensure that a comprehensive recovery system is in place for cargo, and in particular those involving dangerous and hazardous goods. It should, for example, be relatively straightforward to implement such legislation as the Hazardous & Noxious Substances Convention, which has been in place since 1996 but still requires at least one more signatory to ensure ratification. If implemented, this should allow sufficient funds for dangerous cargo that are frequently carried very near to the UK coast to be dealt with, and parties involved fully compensated. Similarly, bunker fuel (which is not currently covered by oil pollution legislation) compensation would be possible if the Bunker Convention (due to be ratified on 21 November 2008) is properly and fully implemented. This would, for example, give port and similar authorities the right to claim direct against insurers and/or obtain adequate security by letters of guarantee and/or credit at the outset of any casualty.

Similarly, if the Nairobi Wreck Convention - which is incorporated into the government's draft Marine Navigation Bill - was enacted, the onus of removing wrecks and associated equipment and cargo from the coast of the UK would be on ship owners and their insurers - and not, as if often the case, on the emergency powers, local authorities and related organisations such as The National Trust, fire brigade or police. Indeed, to continue to expect them to do so is iniquitous and unethical.

For example, the "Mullheim" has still not been removed from the Cornish coast and the Isles of Scilly are out of pocket to the tune of over £150,000 out of the clean up operation of the "Cita" which is unrecoverable against the owners and/or insurers because they simply walked away from the incident and/or went into liquidation. Similar expenses were incurred and unrecoverable in such incidents as the "Roseby", the "Kodema", the "Sea Empress", the "Jambo" and the "Logik". In the case of the "Logik" as a result of her grounding on the River Nene in December 2000, the port of Wisbech was closed for in excess of 44 days and the task of removing the wreck and pollutants was undertaken by government and the local harbour authority at a cost of about £1.25 million, because the owners and insurers, again, declined to take responsibility. This is a very real risk around the coast of the UK and should not be allowed to continue. The answer is to accelerate the inter-action of appropriate legislation.

Second, the container industry, of course, should do a great deal of soul searching and rectify the position whereby in such an industry, it is not possible to weigh, with complete accuracy, all cargo that goes on board a container ship. Why at load ports is there not a proper weighbridge system? In any event, like the oil industry, there should be a fund into which those transhipping such cargoes by sea contribute. In the case of the oil industry these are known as "TOPIA" and "STOPIA".

Third, another key point to come out of the inquiry is the position of the Secretary of State appointed representative known as the "SOSREP". Whilst most agree that he has done a very good job in this case and used his very extensive powers effectively, nevertheless the same cannot be said of the land-based operation. There may be a need for the equivalent of a Secretary of State representative on land. In order to avoid confusion, establish primacy at the early stages of any incident, and in particular allay any confusion as to the powers of, for example, the Receiver of Wreck, it would be appropriate to have two such appointments, i.e. SOSREP (S) and SOSREP (L).

Fourth, what is certain is that the Government, through the MCA, should look at changing the National Contingency Plan to include guidance in respect of cargo and not just oil related incidents. Currently it is inadequate in this respect and now, in the wake of the "Napoli", is the ideal opportunity for such amendments to be given legal effect.

Lastly, it is axiomatic that every effort should be made to implement, not only by national government but also by the EU who, particularly in light of major incidents such as the "Prestige" and the "Erika", have considered the issue of maritime casualties off the coasts of Europe very carefully indeed. In fact they have produced what is known as the "EU Third Maritime Safety Package" which contains seven directives. These should be supported by our government and every effort made to implement these directives, which should inure not only to the benefit of the shipping industry, but also UK ratepayers.

At the same time it is important that the International Maritime Organisation - a branch of the United Nations which deal with all marine related issues - should be addressed on the many varied and important points that have arisen out of this careful and comprehensive investigation.

The UK has a well-established record in taking the international lead in such incidents. The "Torrey Canyon" precipitated a wide raft of pollution related legislation which has dramatically improved world trade over the last 50 years and it should be the case that the "Napoli" precipitates a similar chain reaction to deal with all non-oil related cargo incidents in what is inevitably an international arena. Accordingly, the inhabitants of Devon and Dorset, and in particular Branscombe, can, as has so often been the case in the past, be the catalyst for the vital change and improvement of the marine environment on which we all depend.

Ashfords LLP is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.