CASUALTY RESPONSE IN THE GULF A LOCAL LAWYER S PERSPECTIVE

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1 CASUALTY RESPONSE IN THE GULF A LOCAL LAWYER S PERSPECTIVE Rolf Meyer-Reumann Malte Reiss, LL.M. Meyer-Reumann Legal Consultancy Dubai, U.A.E.

2 Table of Contents A. Introduction 3 B. Rescue of Lifes at Sea 3 C. Environmental Protection 5 1. International Organizations and Frameworks in the Gulf Region 6 a) MARPOL 6 b) Kuwait Regional Conference and adopted Resolutions 6 c) Marine Emergency Mutual Aid Centre (MEMAC) 7 2. National Combat Measurements in the Single States 8 3. RECSO, the Private Organization of Oil Companies Environmental Legislation of the United Arab Emirates 11 D. Compensation for Casualty Response Action(s) International Conventions 12 a) Salvage Convention of b) Convention on Civil Liability for Oil Pollution Damage (CLC 92) National Law of the United Arab Emirates 13 a) Adoption of the Salvage Convention of b) The UAE-Maritime Law No. 26 of c) Conflict between the Salvage Convention and the UAE Maritime Law 17 E. An Example: The Pontoon 300 Incident in F. Summary 19 2

3 Casualty Response in the Gulf a Local Lawyer s Perspective A. Introduction This article covers two major points of casualty response. On one side, the theory and the practical side of casualty response in the Region will be examined with regard to identity and equipment and personnel of the relevant authorities or persons to take action in case of an emergency. To give a better overview, it is distinguished between immediate rescue of lifes and salvage of goods or environmental protection which is highly stressed in a region where a lot of oil transport is carried out via the sea. The relevant authorities in case of an emergency will be explained, and as much as possible a short overview over the equipment in place will be given. For this purpose the international and regional conventions for interstate co-operation are discussed as well as the national distribution of tasks and responsibilities. From the lawyer s perspective, of course, it is relevant to examine the distribution of responsibilities and, who has to carry the costs of any response and salvage actions taken, which shall be reviewed in the second part of this examination. For future reference this article will be published on a portal on the Meyer-Reumann Legal Consultancy s website B. Rescue of Lifes at Sea Although almost any time when a ship sinks high commercial and economic values with regard to the value of the vessel and the cargo are at stake, the first and foremost importance is to rescue the crew and any people on board the sinking vessel. With regard to the rescue of the life of people in accidents on sea, the International Convention for the Safety of Life at Sea has been put in place since 1914 in various versions (1929, 1948, 1960 and in its fully revised version of 1974, which again has been repeatedly amended). It covers almost all types of commercial ships engaged in international service, and it has been ratified by all major maritime nations. In addition to the original three subjects of the 1914 version, the current SOLAS convention 3

4 includes ship structures and stability, machinery and electrical systems, navigation, fire safety, carriage of dangerous cargoes, ship management, and other safety-related subjects. With regard to the Gulf, the SOLAS 1974 has been ratified by the ROPME (Regional Organization for the Protection of the Marine Environment) Member States as follows: Contracting States Date of signature or deposit of instrument Date of entry into force or succession Bahrain (accession) 2l October l January 1986 Iran (ratification) 17 October January 1995 Iraq (accession) 14 December March 1991 Kuwait (accession) 2 29 June May 1980 Oman (accession) 25 April July 1985 Qatar (accession) 22 December March 1981 Saudi Arabia (accession) 24 April July 1985 United Arab Emirates (accession) 15 December March 1984 The UAE have accessed SOLAS 1974 via Federal Decree No. 38 of 1983, published in the Official Gazette, Year No.13, Issue No. 127, pp The main objective of the SOLAS Convention is to specify minimum standards for the construction, equipment and operation of ships, compatible with their safety. The scope is to ensure that every ship has a rather high standard with regard to safety equipment. SOLAS, however, does not deal with the question how the Member States to the Convention have to or shall set-up their rescue teams and equipment, if any. It also does not deal with the question, who is responsible to cover the costs of any rescue action and to what extent. In the Gulf States, generally there are national marine security forces organized by the Member States. In the United Arab Emirates, for example, every Emirate has a security force to carry out rescue operations, saving lifes and rescuing boats and ships. Generally, it is a subdivision of the Police forces or the relevant Municipality which carries out such task, e.g. the Marine Police from the Abu Dhabi Police, is responsible for Abu Dhabi, or the Sea Rescue Section of the Dubai Police is responsible for protection of Dubai, Fujairah and Ras Al-Khaimah. 4

5 From some source the advice has been heard to call in case of an accident the US Coast Guard for help. Alternatively P&I Clubs or Hull Insurances may step in and directly may give instructions for rescue manoeuvres. C. Environmental Protection A major issue with regard to marine casualty response in the Arabian Gulf Region is, almost naturally, environmental protection. The Gulf Region comprises of the Arabian Gulf, the Strait of Hormuz and the Gulf of Oman. Numbers vary, but around 40% of the world s seaborne crude oil trade passes through the Strait of Hormuz. Luckily, there have not been many major accidental spills from tankers after the Iraqi conflicts with Iran and Kuwait, be it due to collisions or other accidents 1. The biggest spill caused by marine traffic in the last thirty years was caused by a collision, when in 1985 the tanker Nova lost around 70,000 tons of crude oil in Iranian waters. This is according to the statistics of the International Tanker Owners Pollution Federation (ITOPF) the only one of the twenty biggest oil spill accidents in the world that took place in the region. The Exxon Valdez accident in Alaska in 1989, one of the most memorized ones, is according to this statistic, which put the accidents in order by the amount of oil spilled, No.20 with 37,000 tons spilled. 15,900 tons of crude oil leaked into the Arabian Sea after the Panamanian-flagged supertanker Seki spilled the crude 10 miles (16 km) off the UAE-port of Fujairah, just outside the Arabian Gulf, when it collided with a tanker under UAE-flag. Oil reached the UAE coast North of Khor Fakkan close to the Strait of Hormuz. The oil slick severely polluted several beaches and threatened more than 40 km of coastline. The most recent bigger oil spill happened on April 6, 2001 near the reserved island of Sir Bou Neair, about 70 nautical miles off the coast of the Emirate of Sharjah. The Emirate of Sharjah temporarily shut down a desalination plant as a precautionary action, after the spill neared pumping stations. The spill was said to be Sharjah's worst environmental disaster in years. 1 A comprehensive summary of all major Oil Spills and Desasters has been made available on the website of Infoplease, 5

6 The biggest incidents of pollution, of course, did not stem from a ship accident but from the Gulf War in Approximately 850,000 tons of oil entered the marine environment during that time when oil facilities in Kuwait and Iraqi tankers were destroyed. In particular the pictures from the Kuwaiti oil well lit by the Iraqi troops when withdrawing, have gone around the world. 1. International Organizations and Frameworks in the Gulf Region a) MARPOL The International Convention for the Prevention of Pollution from Ships, 1973, as amended by Protocol of 1978, has only been signed and accessed by Iran, with the exceptions of Annexes III and IV, in January 2003, Oman on June 13, 1984, and recently on August 23, 2005, Saudi-Arabia Saudi-Arabia thereby has accepted the amendment by the 1997 Protocol. Thus the other five States (Bahrain, Kuwait, Iraq, Qatar and United Arab Emirates), are not members of MARPOL. b) Kuwait Regional Conference and adopted Resolutions In the early 70s, the eight coastal States of the Arabian Gulf Region (Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates) began to realize the vital necessity to coordinate a common action to protect the sea surrounded by them. The concern to protect the marine environment against pollution from various sources prompted the State of Kuwait to propose in 1973 to the United Nations Environment Programs (UNEP) to host an inter-governmental meeting of the States of the Region in order to develop necessary measures towards the matter. After several years of planning and preparations a Regional Conference was convened in Kuwait between 15 and 23 April It was attended not only by politicians but also by legal and technical experts from the eight States. The Conference adopted the following documents: Kuwait Action Plan for the Protection and Development of the Marine Environment and the Coastal Areas; 6

7 Kuwait Regional Convention for Cooperation on the Protection of the Marine Environment from Pollution; Protocol concerning Regional Cooperation in Combating Pollution by oil and other Harmful Substances in Cases of Emergency. Regional Organization for the Protection of the Marine Environment (ROPME) 2 In accordance with Article XVI of the Convention, the Regional Organization for the Protection of the Marine Environment (ROPME) was established. The objective of ROPME is to coordinate the Member States efforts towards protection of the water quality in the ROPME Sea Area and protect the environment systems as well as marine living and to abate the pollution caused by the development activities of the Member States. c) Marine Emergency Mutual Aid Centre (MEMAC) In addition to the establishment of ROPME and in conformity with the provisions of the Protocol, the Marine Emergency Mutual Aid Centre (MEMAC) was established in Manama, Bahrain, on August 4, It became functioning in March The objectives of MEMAC are contained in Article III of the Protocol, which reads as follows: to strengthen the capacities of the Contracting States and to facilitate cooperation among them in order to combat pollution by oil and other harmful substances in cases of marine emergencies; to assist Contracting States, which so request in the development of their own national capabilities to combat pollution by oil and other harmful substances and to co-ordinate and facilitate information exchange, technological co-operation and training. as a later objective to initiate operations to combat pollution by oil and other harmful substances at the Regional level. This will be subject to approval by the Council after evaluating the results of previous objectives and in the light of financial resources which can be made available for this purpose. 2 For more details on ROPME see the website of Global Marine Oil Pollution: ROPME Sea Area or directly the Regional Organization for Protection of the Marine Environment-website at 7

8 In the meantime MEMAC has established its own Regional Training Centre in Mina Sulman in Bahrain. Several training courses have been organized in order to strengthen the Member States' capabilities and familiarization of personnel with important issues related to the environment and the techniques of combating pollution upon the approval of the ROPME Member State Council either in the Training Centre or elsewhere. The courses are generally conducted in co-operation with well experienced experts, international firms and organizations. 2. National Combat Measurements in the Single States The Convention in general and ROPME in particular request its Member States to exert their maximum efforts to protect the marine environment and prevent the reasons of pollution. The various States have taken different types of action. They installed facilities or created a task force or rely on private national and/or international organizations to organize combating pollution. The main target is the preparation to fight pollution by oil. In every State there is an authority to which oil spills shall be reported. These authorities are: Country United Arab Emirates Bahrain Qatar Saudi-Arabia Iran Kuwait Oman Competent Authority Report is to be given to the nearest Port Authority. The competent national authority to co-ordinate the combating is the Federal Environmental Agency. Report is to be given to a centralized spill notification point at Bahrain Port Control. The competent national authority to co-ordinate the combating is the Department of Environmental Affairs. Report is to be given to a spill notification point at Qatar Petroleum, the national oil company. The competent national authority to co-ordinate the combating is the Environment Protection Committee. Report is to be given to the nearest Port Authority or directly to the competent authority, the Presidency of Meteorology and Environment and/or the Ministry of Defense and Civil Aviation. Report is to be given to the Port and Shipping Authority, being the competent authority. Report is to be given to the Environment Public Authority, being the competent authority. Report is to be given to the competent authority, the Ministry of Regional Municipalities, Environment & Water Resources, which has a Pollution Control Operations Section; alternatively, the navy and/or the police may also be 8

9 notified. Generally, the authorities are in charge to develop and implement an action plan or to take the appropriate actions. The steps to be taken depend on the level of pollution and/or danger and on the instruments and facilities available in the respective area/country. In case of minor spills, generally the nearest port authority or the oil company will respond. In case of major spills, the national authority would appoint and designate one way or the other an On-Scene Commander (OSC) to organize and oversee the combating and clean-up operations. Most states have access to equipment and facilities to combat oil pollution located at different places 3 : Country United Arab Emirates Bahrain Qatar Saudi-Arabia Kuwait Resources for Equipment Federal Coast Guard and Air Wing of Ministry of Interior for surveillance (vessels, vehicles, planes); MEMAC resources; Port Authorities for tugs, dispersant and clean-up equipment; Private Oil Companies, i.a. ADNOC and Dubai Petroleum (RECSO-members 4 ) have located equipment at several facilities in the country. Several national authorities such as the Customs & Ports General Authority or the Armed Forces are keeping stores of equipment; MEMAC resources; Bahrain Petroleum Company (BAPCO), being a member of RECSO. Several national authorities such as the Customs & Ports General Authority or the Armed Forces are keeping stores of equipment; MEMAC resources; Qatar Petroleum can provide aerial surveillance (Qatar Petroleum and Maersk Oil are RECSO-members). Presidency of Meteorology and Environment and Port Authorities are keeping stores of sufficient equipment for ship incidents; Arabian American Oil Company (Aramco) has equipment including offshore aerial spraying and is member of RECSO. Any equipment (private and public) is held by oil companies or the Port Authority; Air Force and Coast Guard may provide additional assistance; 3 4 For more details see the website of International Tanker Owners Pollution Federation Limited: RECSO stands for Regional Clean Sea Organization, see also the following chapter. 9

10 Oman Iran MEMAC resources; Kuwait Oil Company is a member of RECSO. Ministry of Regional Municipalities, Environment & Water Resources and other authorities; MEMAC resources; Petroleum Development Oman is member of RECSO. Only limited information available, most likely: Ports and Shipping Organization, National Iranian Tanker Company and Ministry of Transportation, Ministry of Environment are in charge, see e.g. mii.pdf 3. Regional Clean Sea Organization (RECSO), the Private Organization of Oil Companies RECSO is an oil industry co-operative organization functioning on the concept of "mutual aid", set-up in 1972 by 13 founder members. RECSO still has only 13 full members: Country Bahrain Kuwait Iran Qatar Saudi Arabia United Arab Emirates Oman Company Bahrain Petroleum Company, BAPCO Kuwait Oil Company, Al Khafji Joint Operations Iranian Offshore Oil Company Maersk Oil Qatar, Qatar Petroleum, Qatar Shipping Company Aramco, Saudi Arabian Texaco Inc. (SAT), National Shipping Company of Saudi Arabia (NSCSA) Dubai Petroleum Company (DPC), Dubai; ADNOC, Abu Dhabi. Petroleum Development Oman (PDO). RECSO is built on the concept of mutual aid in times of emergency. The RECSO Agreement calls to maintain in readiness at all times, defines a minimum of oil spill response equipment and oil dispersant chemicals to be available for use in emergency situations. This equipment must be made available to any member company on request in order to assist in pollution response. The most significant feature of the RECSO-Agreement is the provision for voluntary liability for the clean-up costs of other member companies when a member company is responsible for the oil pollution. This, however, leads to the problem that in any other case of pollution and/or emergency, with the cost factor unclear RECSO 10

11 sometimes may be hesitant to help out. In addition thereto, other companies have intensified their efforts to co-operate with the local authorities. Recently, in January 2006, for example, the Emirates Petroleum Products Company (EPPCO) carried out a huge drill at Jebel Ali Port. At this occasion the co-operation of the fire and rescue department of the company, the Ports and Customs and Free Zone Corporation Fire and Rescue Department and the Marine Department of Dubai Ports Authority and the Jebel Ali Free Zone was successfully tested. Practically all oil producing companies in the Region have their own environmental protection and safety departments and units with appropriate equipment to react to minor and medium sized casualties. 4. Environmental Legislation of the United Arab Emirates In the United Arab Emirates, the Federal Environmental Agency is the competent authority regarding the protection of the environment. It was established in 1993 by the Federal Environmental Agency Law No.7 of 1993 (UAE-EAgL) 5. However, the Protection and Development of Environmental Law No. 24 of 1999 (UAE-Pr+DevL) 6 was not issued before late 1999, as the Agency had to prepare the law. The Law is comprehensive and covers in 101 articles all areas, where an environmental protection or development is reasonably required. It includes inter alia marine pollution, Art. 20 UAE-Pr+DevL. The Agency may request the assistance of the Seaport Authorities, Armed Forces, the Ministry of Interior (Police), the Ministry of Petroleum and Mineral Resources or other departments for the implementation of the Law, Art. 92 UAE-Pr+DevL. The penalties in case of violation of the Law are heavy and are subject to the nature of the violation, up to a maximum penalty of death of life imprisonment in case of import or storage of hazardous waste. With regard to marine safety, e.g. Art. 26 UAE-Pr+DevL regulates that all marine means of transportation which transport oil and enter the Marine Environment of the State must be equipped with adequate equipment to control pollution. Art. 30 UAE-Pr+DevL obliges the captain or the chief officer of any marine means of transportation to take the necessary procedures to protect the marine environment from pollution effects in case of the occurrence of any accident including hazardous substances that may pollute the marine environment, and he must 5 6 Federal Environmental Agency Law (EAgL); Federal Law No.7 of 1993; issued by the President on to February 4, 1993 AD, promulgated in the Official Gazette No. 247 (part 2) of , pages Federal Law No (24) of 1999 Protection and Development of Environment Law, issued by President of United Arab Emirates 11

12 execute the orders of administrative parties, inspectors or judicial commissioners. The Federal Environmental Agency is an autonomous public authority, Art. 2 UAE-EAgL, having its own budget, which is directly linked to the budget of the State. The position of the Chairman is reserved for the Minister of Health, Art. 5, Art. 1 UAE-EAgL. The competence is far reaching and included everything, which is related to environmental matters, Art. 4 (2) UAE-EAgL. D. Compensation for Casualty Response Action(s) One major problem with regard to casualty response action is that the original idea of paying compensation only if the operation is successful does not give the salvor much incentive to protect the environment or the life of crew and/or passengers. The international community has soon realized that such regulations and laws may lead to a very difficult situation with regard to compensation for emergency measurements without the attempt to rescue any cargo or vessel. As a consequence, several international Conventions have been passed, and most of the ROPME Member States eventually have accessed and or ratified these Conventions. 1. International Conventions a) Salvage Convention of 1989 The Convention replaced a Convention on the Law of Salvage adopted in Brussels in 1910, which incorporated the "'no cure, no pay" principle under which a salvor is only rewarded for services if his operation is successful. Although this basic philosophy worked well in most cases, it did not take pollution into account. A salvor who prevented a major pollution incident (for example, by towing a damaged tanker away from an environmentally sensitive area) but did not manage to save the ship or the cargo got nothing. There was therefore little incentive to a salvor to undertake an operation which has only a slim chance of success. 12

13 The 1989 Convention seeks to remedy this deficiency by making provision for an enhanced salvage award in form of a "special compensation" to be paid to salvors who have failed to earn a reward in the normal way (i.e. by salving the ship and cargo). Damage to the environment is defined as "substantial physical damage to human health or to marine life or resources in coastal or inland waters or areas adjacent thereto, caused by pollution, contamination, fire, explosion or similar major incidents." b) Convention on Civil Liability for Oil Pollution Damage (CLC 92) With regard to the protection of the environment against oil pollution, in 1969 the International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC 1969) was entered into. It was first amended by the Protocol of 1976 (PROT CLC 1976) and then again by the Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage, 1969 (CLC PROT 1992). Member States in the Gulf Region: Contracting States Date of entry into force or succession CLC 69 (PROT CLC 1976) Bahrain (accession) 23 July 1996 and 1 August 1996 (76) Kuwait (accession) 1 July 1981 and 29 September 1981 (76) Date of entry into force or succession CLC PROT May April 2005 Oman (accession) 24 July May 1996 Qatar (accession) 31 August November 2002 United Arab Emirates (accession) 12 June November 1998 Saudi Arabia (accession) 14 July May 2006 Iran and Iraq are not members of the CL-Convention nor have they ratified or accessed it in any way. 2. National Law of the United Arab Emirates Hereinafter the national laws of the United Arab Emirates will be described. To some extent the national laws the other States around the Gulf are similar. Thus the United Arab Emirates may serve as an example on how the national law deals with compensation questions and which influence the international conventions take. 13

14 a) Adoption of the Salvage Convention of 1989 Federal Decree No.44 of 1993 converted the Salvage Convention of 1989 into UAE National Law. Article 1 of this Decree approves the accession of the UAE to the Convention and a copy of the authentic text of the Arabic translation is attached and published in the Official Gazette (Decree signed August 21, 1993, published in Fed. Official Gazette Year No.21, Issue No. 254, p.141), giving the text the status of a national law. The UAE has not made any reservations as allowed under Art. 30 of the Salvage Convention. Especially, it has not ruled out the application of the Convention in case only UAE nationals are involved. However, the national rules on salvage remain in force and still apply in any area in which the Convention does not apply. b) The UAE-Maritime Law No. 26 of 1981 i) The Contents of the Law While the UAE are a federal system with seven Emirates, the UAE Federal Government has implemented Federal Law No. 26 of 1981 (UAE-Maritime Law, UAE-MarL) as one of the major Federal Law in place in the country. The UAE have codified laws. Judgments and case law have legally limited influence in developing substantive law. However, there are a lot of cases that deal with maritime matters in UAE courts. Some of these judgments are very relevant and had some influence on the law making process. Actual developments also may affect the legislative process. It may not have come as a surprise that the rapid enactment of a ban on the carriage of oil products by vessels not designed for that purpose in March 1998 was triggered by the Pontoon 300 accident 7 and some similar incidents in January and February Liability and financial responsibility for marine incidents and compensation for casualty response and emergency measurements are regulated in the UAE-Maritime Law. This law consists of 422 Articles. It is sub-divided into six titles with several sub-chapters. The headlines of the chapters and article of the 7 The details of the accident are described below. Please see also the website of International Tanker Owners Pollution Federation Limited 14

15 law may serve as a guide for its contents: Chapter, Article Art Title 1, Art Title 2, Art Title 3, Art Title 4, Art Title 5, Art Title 6, Art Headline Introductory; The Ship; Arrest of Ships, Liens & Mortgages; The Persons of the Ship; Use of the Ship; Maritime Contingencies; Maritime Insurance. ii) Legal Requirement to be of Assistance According to Art. 336 UAE-MarL, every shipmaster is obliged to render help to any vessel which is about to sink or to a person in danger, unless his/her vessel, crew or passengers aboard would be exposed to serious risk. Failure to do so will entail civil and criminal liability. However, the ship-owner or charterer is only responsible for neglect to help if he/she gave corresponding instructions not to help. iii) Salvage and Compensation Rules Salvage regulations and rules about casualty response on sea and with regard to ships are a essential part of Title 5. Chapter 3 of this Title, Art. 327 to 339 UAE-MarL, is titled Assistance and Salvage. Although there have been rumours that the UAE-Maritime Law was to be replaced by a new Code and in 2004 a draft of such Maritime Bill was presented and passed the Federal National Council, which was partly intended to implement the rules of the Salvage Convention of 1989 as such, the Maritime Law No.26 of 1981 is still in place and valid. Chapter 3 of Title 5 of the UAE-Maritime Law is almost an exact copy of the 1910 Brussels Convention for the Unification of Certain Rules of Law Respecting Assistance and Salvage at Sea, although the UAE never accessed that Convention officially. As a consequence of the fact that there have been almost no changes, the UAE National Law is rather conservative and not up to date with the recent of even less recent developments in the international view of salvage actions and compensation. The UAE-Maritime Law follows the slogan: No cure, no pay! According to Art. 328 UAE-MarL, any act of aid and rescue gives the right to a just remuneration if, but only if and limited by the extent, the 15

16 salvage operation leads to a beneficial outcome. The success is measured in tangible property (cargo and/or vessel) rescued. If no such success is reached, e.g. if a tanker sinks and all oil carried is spilled in the sea, the UAE-Maritime Law does not entitle the salvors to any remuneration. In every case where the salvage operations are successful, however, the right to remuneration is not only a contractual right against the contract partner, which it may generally be if a contract is entered into, but it is a legal obligation of and directed towards the ship-owner. If the salvor and a third party, be it the ship-owner or any third party, have entered into a contract regarding the salvage operation, such contract is generally valid. However, Art. 334 UAE-MarL holds that any agreements for rescue entered into at time of danger shall be nullified or adapted by the courts if the conditions of the agreement are unjust. The salvage award is payable by the ship-owner whose vessel has been preserved by or received a benefit from the salvage service. Generally, remuneration by law shall not exceed the value of the things (vessel and cargo) rescued. The value of the property salved practically is the fund out of which the salvor s awards are taken. In determining the remuneration and its distribution between the salvor and other participating persons, the following points shall be assessed and evaluated, Art. 335 UAE- MarL: the amount of benefit which resulted from the rescue; efforts and competence of the rescuers; the to which the vessel which was given help was subject to; the danger that the rescuers and the vessel which provided help were subject to; the time taken by the rescue operations and cost and damage incurred; responsibility dangers risked by the rescuers; the value of equipment used considering the purpose of the vessel engaging in aid; the value of the items rescued. The value of the goods salvaged is explicitly separated and distinguished from the benefit of the rescue, thereby including additional benefits such as the rescue of life or the avoidance of environmental pollution or further incidents and/or damages that would have occurred without the salvage operation. 16

17 However, according to Art. 332 UAE-MarL the distribution of the remuneration along owner, master and personnel in the service of the salvaging vessel, if any, shall be as provided for in the law applicable in the jurisdiction of the vessel. Except it has explicitly been agreed otherwise, remuneration does not become due for towing and piloting unless for additional exceptional services, Art. 330 UAE-MarL. Remuneration also does not become due for the rescue of persons, Art. 333 UAE-MarL. Whoever rescues a person in the process of rescuing a vessel and/or cargo, however, shall receive a just share of remuneration by the shipowner in the same accident, if any. c) Conflict between the Salvage Convention and the UAE Maritime Law While the United Arab Emirates have signed the Salvage Convention of 1989, they have not altered the Maritime Law. In some instances the rules between the two sets of regulations differ from each other quite a bit. Generally, it must be held that, as the Salvage Convention is the younger law, the Convention does supersede the rules of the Maritime Law. According to its Art.4 (1), the convention does not apply to warships and State owned vessels unless explicitly decided by the member state. Such decision has not been made by the U.A.E. Therefore, for these vessels, the Maritime Law is the only legitimate basis for any claim for compensation. While Maritime Law and the general compensation rules of the Salvage Convention are very similar, Art.14 of the Conventions calls for Special Compensation under special circumstances. Such compensation in unknown in the UAE-Maritime Law. The special compensation rule accepts the avoidance of environmental damage as success and obliges the ship owner to pay up to 100% of the expenses of the salvor, including a fair rate for equipment and personnel actually and reasonably used in the salvage operation. The consequence of the exclusion of warships and UAE- or Emirate-owned vessels does not make real sense, especially since these ships are also excluded when it is the question whether they are entitled to any reward. However, this is the status quo, as long as UAE-law does not recognize the special award or extends the application of the Salvage Convention to state-owned ships and warships. This 17

18 means that the State will have more difficulties to recover its expenses from a ship owner or insurance company for its rescue and environmental protection action. This as some practical cases have proven (see also subsequently D., although it concerns a different problem as the owner of the ship was not known) may be a hindrance for effective measurements taken by the State. E. An Example: The Pontoon 300 Incident in The question of compensation for the rescue and salvage operations is often rather difficult, as the example of an incident in 1998 demonstrates: On January 7, 1998, the barge Pontoon 300, apparently heavily overloaded with fuel oil and in the process of being towed by the United Arab Emirates tug Falcon I, got swamped and sank about six nautical miles off Hamriyah Free Port (Sharjah, UAE). The salvage of the Pontoon 300 and the remainder of the cargo was undertaken by a local salvage contractor and took almost a month due to difficult conditions. A lot of the fuel oil was carried towards the coastline and stranded there. In a major oil spill operation, the UAE-Environment Agency was taking charge and appointed a response committee and an On-Scene-Commander. However, the local authorities did not take immediate action because the question of compensation was unclear. The owner of the Pontoon 3000 was not known in the beginning and the barge was towed whereby the responsibility between barge owner and tug owner had to be clarified. No insurance company or P & I Club responsible could be identified. The absence of a ship-owner and/or the shared responsibility between tug owner and barge owner also meant that there is no compensation available under CLC 69 or under the Salvage Convention of The clean-up was finally initiated by ADNOC. Later the authorities joined, however, due to lack of funds and resources, the operation to clean-up the beaches in the several Emirates took a long time. Not before March 1998, Lamnalco Group of Companies, a local offshore marine service provider, started clean up operations under the surveillance of IOPC Fund experts after having made sure that the A detailed description oif the incident and the subsequent legal actions may be found in the Executive Commitees report of the incident at the Internaional Oil Pollution Compensation Funds 1971 and website 18

19 IOPC-Fund-criteria were met by the clean-up program. While Lamnalco has been refunded by now, the compensation proceedings via the fund are still not finalized, but legal proceeding last until today. The Municipality of Umm Al Quwein claims almost 200 million AED from the Fund and the tug owner. The fund claims that action against it is time-barred as the requirements under the regulation for preventing the time bar had not been instituted. The Umm Al Quwein court has referred the matter of the amount of damages to an expert panel who issued its report in February The parties disagreed and raised various objections, so the experts are back to their task. The proceedings have been postponed until the expert report is finalized and submitted. For a smaller amount of claims, in sum 4.7 million AED have been paid by the Fund in a settlement with the claimants. The Fund then sought to be reimbursed by the tug owner and the owner of the cargo on the barge. The Courts so far have held - after several appeals and hearings the cargo owner and charterer and the tug owner jointly liable for damages of 3.5 million AED. The tug owner appealed the judgment in the whole, the Funds with regard to the amount of the award only. No final judgment has been issued up to date. F. Summary Especially with regard to oil spill response and environmental protection the Gulf countries, differentiating from State to State, seem to be in a position where emergency and casualty response may be effected in a quick and effective way. To a big part the response equipment and organization will be organized by private parties such as the oil companies, P&I Clubs or Underwriters. Since the Gulf War, luckily, there was no major incident regarding oil spills has occurred. The few situations since 1992 have mostly been dealt with appropriately although sometimes after initial difficulties with regard to the distribution of responsibilities. With regard to casualty response in case where the life of persons has been at risk, the Gulf Region is generally not different to any other region of the world. While most of the times it will be international war ships that react first to marine accidents, the reason therefore may be seen in the rather high density of such ships in the Gulf Region. Compensation for salvage actions does not necessarily include the special compensation for 19

20 environmental precautionary actions, depending on the situation and the identity of the salvor. This is certainly a fact which may be regarded critical as the missing implementation of special compensation in some national statutes such as the U.A.E. Maritime Law may lead to unwelcome and detrimental delays of the initiation of the actions with regard to the protection of the environment. Dubai / Bremen, February 2006 Rolf Meyer-Reumann Malte Reiss, LL.M. Roedl, Meyer-Reumann 20

21 Roedl, Meyer-Reumann (R&M) was known as Meyer-Reumann Legal Consultancy until end of As of Roedl & Partner, an internationally operating law firm, has joined Meyer-Reumann Legal Consultancy, which subsequently will be renamed into Roedl, Meyer-Reumann. Roedl, Meyer- Reumann is a legal consultancy firm in the United Arab Emirates with offices in Dubai and Abu Dhabi and an associated office in Baghdad. Roedl, Meyer-Reumann provides legal services to foreign and local companies and businessmen in all sectors of commercial law, including maritime law. Rolf Meyer-Reumann took up the legal profession after a maritime career (master mariner) and drafted maritime rules and regulations for the Saudi Ports Authority in 1981/82. Right thereafter he started a permanent engagement in the Middle East in a co-operation with a Saudi law firm in Jeddah he expended to Riyadh. In 1988 he decided to expand his activities to the entire Gulf and opened in 1989 Meyer-Reumann Legal Consultancy in Dubai. Malte Reiss, LL.M., joined Meyer-Reumann Legal Consultancy in 2005, and he took over from Dr. Oliver Wirth, inter alia, the responsibilities for maritime law cases together with Rolf Meyer-Reumann. Abu Dhabi Office: Meyer-Reumann Legal Consultancy Abu Dhabi, U.A.E., P.O.Box Tel Fax [email protected] Associate in Iraq: Law Office Hadeel A. Hasan Baghdad, Iraq Tel Mob Fax [email protected] Meyer-Reumann Legal Consultancy Dubai, P. O. Box 9353, Dubai, UAE Tel: , Fax: , [email protected] Meyer-Reumann Legal Consultancu, P. O. Box 45360, Abu Dhabi, UAE Tel: , Fax: 00* , [email protected] Auss M. Younis Law Office, Baghdad, Iraq Tel: , [email protected] 21