Morrison, A P, Places of Refuge for Ships in Distress. Problems and Methods of Resolution

• Author: Michael Underdown
• Position: Professor of Maritime and Commercial Law, Marine and Shipping Law Unit (MASLU), TC Beirne School of Law, University of Queensland
• Pages: 47-48

(2013) 27 A&NZ Mar LJ

47

BOOK REVIEW

Morrison, A P, Places of Refuge for Ships in Distress. Problems and Methods of

Resolution. Leiden: Martinus Nijhoff, 2012. xix, 416 pp (Legal Aspects of Sustainable

Development, Vol 12)

Dr Michael Underdown*

It is obvious that there ar e two fundamentally opposite interests in how ships in distress are handled. On the one

hand, ship owners, cargo owners and i nsurers are interested in a place of refuge being found so that the ship and

its cargo can be made safe. On the other hand, coastal st ates are naturally concerned about the safety of their

populations and ports and the protection of their environment from the disastrous effect of oil spills, explosions

and fires.

It is d ifficult to reconcile these two interests, especially when it is clear from the outset that the author favours

an international Convention mandating the granting of a place of refuge to a ship in distress. There is nothing

wrong with coming to this conclusion after weighing the competing interests more or less evenly. After all, is

the value of a ship and its cargo more than that o f a commercial port that is effectively closed while the ship in

distress is in port, or of a port to wn that is devastated by explosion or fire (as was feared when the Tai P ing

grounded in B luff in October 2002), or of a coastline or fishing industry closed due to oil pollution? However,

there is no such even-handedness in this book.

Having said this, the author deals in detail with the international responses to this problem, in particular, the

background of the IMO Guidelines on Places of Refuge for Ships in Need o f Assistance and the work of the

Comité Maritime International. It is very useful that he has obviously devoted a good deal of attention to the

work of the IMO Legal Committee in this regard.

Chapter 2 (the first chapter is an introduction and preface) provides an overview of approaches to the problem,

noting the changes to the ship ping industry that gave rise to the well-known incidents involving the Erika,

Castor and Prestige. Although the author does refer to the International Convention on Salvage 1989 and to the

salvage industry more generally, he fails in the reviewer’s opinion to take this a step further and consider the

option of using the global salvage regime to deal with the place of refuge problem. Such a regime, freed from

control by inexper ienced ‘incident supremos’ could often, for example, keep the ship in distress more safely at

sea. After all, we do not tow oil rigs on fire into port.

Chapter 3 deals with general access to ports. This is basically a discussion of law of the sea issues, but marred

by eit her misunderstandings, for example, of the nature of ‘innocent passage’, which has nothing to do with

ships entering ports, or infelicitous explanations, which may be due to the compressed way of dealing with this

topic. An example of the latter is the paragraph at the top of page 56 t hat states ‘a coastal State cannot with

impunity deny access to its internal waters for ships if there exists a treaty which obliges the co astal State to

grant access’. This is, of course, correct as it stands; but the fundamental legal position is that the coastal state

has absolute sovereignty over its internal waters — and, indeed, its territorial sea — and whether a port is

considered internal waters or not will depend on how the baseline is drawn; and the coastal state is not obliged

to grant any ship access to a port unless it has made a concession in respect of its sovereignty for a specific

instance or limited purpose.

Chapter 4 looks at the history of access to ports by ships in distress. From a period when such access was

customary or covered by bilateral treaties of Commerce and Navigation — but note that it is not automatic that a

number of similar subject bilateral treaties gives rise to customary international law — there has been a major

shift in attitude by ports and coastal states due to the much greater volume o f shipping, the huge increase in size

* Consultant, Clayton Utz.