Australia's approach to emergency response and towage

9 th Asia Pacific Heads of Maritime Safety Authorities Forum Vina Del Mar, Chile, 18-21 April 2006 Australia's approach to emergency response and towage Clive Davidson Chief Executive Australian Maritime Safety Authority

Abstract Australia is currently introducing an enhanced package of measures to improve its national maritime emergency response arrangements. The package includes appointment of a national Maritime Emergency Response Commander (MERCOM), funding of a system of emergency towage vessels around the coastline and enhancements to powers of intervention legislation to clarify the types of persons that can be directed, the types of directions that may be issued and to expand intervention powers in the Exclusive Economic Zone, using Article 221 of the UN Convention on the Law of the Sea. Australia also is progressing actions to ratify the IMO Bunkers Convention and the Hazardous and Noxious Substances Convention to provide additional layers of compensation for affected parties in the event of a major pollution incident. Background (Slide 2) While the safety standards of commercial shipping have steadily improved over the years, ships operating around the Australian coast, and in the Exclusive Economic Zone (EEZ), continue to present an inherent, although diminishing, risk of a major maritime pollution incident, which could have a significant impact of Australia s marine environment. International experience has demonstrated that even a single major pollution event may result in enormous losses, not only to the maritime environment, but also to coastal communities, and recreational and commercial activities. While the likelihood of a maritime casualty imposing a major risk to Australia s coastal interests is small, the potential consequences of such a casualty warrant a high level of on-going cooperation between the Australian Federal and State/Territory governments to ensure that any such incident is addressed rapidly and effectively. The improving safety record of the maritime industry has reduced the commercial viability of traditional salvage-capable vessels, with the major traditional commercial operator supplying salvage and towage services in Australia recently deciding to withdraw a number of vessels. As well, increasing competition within the port towage market is seeing a gradual move to more cost effective towage vessels that specialise in port operations but have no capacity to operate beyond port waters. The Australian Federal and State Governments have recognised a need to take a greater role in ensuring that a minimum level of ocean-going emergency towage capability continues to be available within Australia to assist with shipping casualties or pollution prevention. (Slide 3) On 18 November 2005, as a response to the 2004 House of Representatives Standing Committee on Transport and Regional Services Inquiry into Maritime Salvage in Australian Waters (the Neville Report), the Australian Transport Council endorsed the establishment of an integrated national approach to the provision of emergency response arrangements, involving minimum levels of emergency towage capability in strategic regions around the Australian coastline and a regulatory framework to support a coordinated approach to emergency response issues. 2

Establishment of such an integrated approach is supported by port authorities, shipping interests and other stakeholders. Governments have also recognised the benefit of single national emergency response management role to address any shipping casualties that have the potential to produce significant pollution. AMSA has been tasked under the arrangement with managing the appropriate tendering processes and contracts for the provision of the national Emergency Towage Vessel (ETV) capability and appointment of the national decision-maker who will coordinate emergency response action in the event of high risk of significant pollution from a maritime casualty. National Maritime Emergency Response Commander (Slide 4) AMSA has appointed a Maritime Emergency Response Commander (MERCOM) to act on behalf of the Authority during a shipping casualty. The MERCOM is responsible for the management of responses to shipping incidents, with intervention powers to take such measures as may be necessary to prevent, mitigate or eliminate a risk of significant pollution, including the power to direct a port to release a tug to provide emergency assistance to a vessel at risk or designate a place of refuge for a ship in emergency situations that present a risk of significant pollution. The MERCOM has appropriate statutory powers to enable effective decision-making consistent with the aim of the NMERA. The MERCOM will consider all relevant legal, practical, environmental, socioeconomic and operational issues in deciding whether and how to respond to a maritime casualty, as dictated by the circumstances of each particular casualty. The person appointed as the MERCOM commenced duties in November 2005, and will also manage the implementation of the emergency towage program in the strategic regions. State and Northern Territory Governments retain their own powers to deal with lesser threats of pollution or other environmental damage within their respective jurisdictions, to the extent that they are available, and may still exercise powers independently. However, MERCOM will be able to exercise his intervention powers if, in his opinion, such action is needed to fully address the threat in question, and the MERCOM s powers prevail over State/Territory powers to the extent of any inconsistency. Emergency Towage Response (Slide 5) AMSA has identified nine strategic regions where emergency towage capacity will be based. These roughly correspond to the State boundaries, with the larger States divided into two or more regions. The area to be covered extends to the edge of the 200 nautical mile Exclusive Economic Zone of the mainland, but will not cover the outlying island territories EEZ. 3

(Slide 6) The proposed approach envisages a multilayered scheme that provides a mix of responses relative to the degree of risk and availability of relevant commercial infrastructure: Level 1: A dedicated chartered Emergency Towage Vessel (ETV) that will provide coverage for the particularly sensitive sea area in the Torres Strait and Great Barrier Reef area north of Cairns. A contract was issued for this requirement in January 2006. (Slide 7) AMSA has contracted the Brisbane firm Australian Maritime Systems (AMS) Limited, in conjunction with Swire Pacific Offshore, to supply and operate under AMSA s direction a 24/7 dedicated chartered ETV that will provide emergency towage and first response capability in the particularly sensitive sea area in the Torres Strait and Great Barrier Reef area north of Cairns/Mourilyan. The vessel, named Pacific Responder, will have its home port in Cairns but will spend the majority of its time at sea, available for emergency tasking by AMSA should a maritime casualty occur. The vessel will also be able to respond to other marine incidents, such as pollution of the sea and search and rescue action. The vessel is expected to commence operations on 1 July 2006. This vessel will also be engaged in maintenance of the aids to navigation network in its area of operation. It is envisaged that this part of its role will be undertaken for approximately 100 days per year. However, the vessel s first response capability during a shipping incident, either actual or potential, will take precedence over its aids to navigation maintenance role. 4

Level 2: Suitable towage vessels with appropriately trained crews that normally undertake existing port or other operations to cover the remaining areas around the Australian coastline. These vessels would be contracted by AMSA to maintain the desired level of capability and would be available in the event of an incident. Operators would be paid to ensure the availability of appropriate vessels and the training of their crews for emergency towage operations. It is proposed to pay the providers an annual fee for maintaining an operational capability that is in excess of what would normally be needed for port operations, and an agreed daily charter fee (plus fuel costs) when called upon by the Maritime Emergency Response Commander (MERCOM) to assist with an incident or when participating in exercises. AMSA commenced the ETV2 tendering process in late November 2005, and is currently evaluating tenders for approximately 50% of the strategic regions, with remainder shortly to be advertised. The objective is to have contractual arrangements in place and operational by the end of 2006. It is intended that the contracts will run for five years, with an optional extension for two further years. The ETV s primary operational requirements are as follows: (a) Availability to respond to any incident on a 24 hours/7 days a week basis as directed by AMSA; (b) Ready to steam at a maximum of two hours notice when in port, although the vessel is not required to be crewed on a 24 hours/7 days per week basis; (c) Suitably equipped to facilitate emergency towage for vessels likely to be found in the indicative area of operation; and (d) Crewed by fully trained and certified staff when called upon to undertake emergency towage work. A particular issue is the need to coordinate with the ports and offshore supply industry contracting arrangements, in order to leverage off those industries towage requirements and to align contract periods and vessel and crew capabilities. As the level 2 vessels will be contracted to other agencies for most of their day to day business, with AMSA requiring only an incremental standby capability for use on a rare event basis, coordination with ports and offshore sectors offers the prospect of significant efficiencies and cost savings against a dedicated vessel. However, there needs to be a protection against breach of contract and liabilities of business impacts in the event a Level 2 vessel is called away, and industry have been very supportive of the need for responder immunity and the protections of being directed to assist a casualty that the proposed amendments to the legislation will introduce. Level 3: Suitable vessels that are in the relevant area at the time of the incident that are used as vessels of opportunity There is expected to be a range of vessels around the coast that would potentially be suitable for emergency towage work, such as offshore tender vessels, and these could be considered to undertake such a role if necessary to supplement, or substitute for, the Level 1 and 2 vessels according to the circumstances of each case. In particular, some low risk remote regions, such as the outlying island territories, may need to rely upon first response from vessels of opportunity. Such ETV3 vessels 5

will not be contracted to AMSA, but will be compensated on a case by case basis if called upon by MERCOM exercising the Government s Powers of Intervention. ETV Operational Roles Operational roles to be performed by the ETV include, but are not necessarily limited to, first strike emergency towage capability in the event of a shipping incident or casualty in the area of operation. First strike capability is defined as providing an initial response to a shipping incident/casualty that might include: (a) Preserving life; (b) Protecting the marine environment from pollution; (c) Fighting fire; (d) Towing a vessel out of immediate danger; (e) Stabilizing a casualty to prevent further damage to the ship or the environment; and (f) Towing or escorting a casualty to a place of refuge (as opposed to a place of repair. Costs of the ETV program The Australian Government has decided that the principles of potential polluter pays and polluter pays will apply to the ETV program, and that costs of managing the contracts, as well as costs of the Maritime Emergency Response Commander, will be borne by the shipping industry through the Protection of the Sea Levy (PSL). The PSL presently funds Australia s National Plan to Combat Pollution of the Sea by Oil or Other Noxious or Hazardous Substances. In the event of an incident, the costs of any measures taken, including calling out an ETV, will be recouped from the owner of the casualty. Should an ETV contracted to AMSA be subsequently engaged on a commercial basis to undertake further towing or salvage functions for the casualty, the ETV will go off charter to AMSA and the owner will pay the towage/salvage costs directly to the towing company. If a salvage agreement is entered into, AMSA will receive a proportion of any salvage award, which will be used to offset the future costs against the Levy. Powers of Intervention (Slide 8) Currently Australia s intervention legislation, the Protection of the Sea (Powers of Intervention) Act 1981, enables AMSA to take such measures as it considers necessary to prevent, mitigate or eliminate the threat of pollution from a shipping incident. Powers to take measures on the high seas, including specific, non-exclusive powers to direct a shipowner, master or salvor in possession of a ship, are based on the IMO Intervention Convention 1969 and its related Protocol of 1973 relating to hazardous and noxious substances, and follow the language of the convention, ie there must be an actual casualty, and a grave and imminent danger to the coastline of Australia, or its related interests, of pollution that could cause major harmful 6

consequences. In this context high seas includes the Exclusive Economic Zone (EEZ) that post-dates the Convention and Australia s intervention legislation. The Act also enables AMSA to take similar measures in coastal waters, although the test before intervention measures can be taken is a more straightforward one of where oil or a noxious substance is escaping or has escaped or is likely to escape from a ship. (Slide 9) Australia is now proposing to enhance the intervention legislation to provide greater clarity and to facilitate decision-making in the event of an emergency. The proposed amendments will cover the following matters: Jurisdiction (Slide 10) Australia is now legislating to separately identify the EEZ, in accordance with the meaning now given by the UN Convention on the Law of the Sea (UNCLOS), and to use the rights accorded to a coastal state under Article 221 of UNCLOS to take additional measures to protect its coast and maritime environment from the threat of marine pollution. Powers to take measures in the EEZ will be aligned with those available in the coastal sea, which will enable intervention actions to be taken sooner than before and may allow more time to prevent a casualty becoming a major pollution incident. Directions (Slide 11) Overseas experience also has demonstrated that it is desirable for there to be clearly enunciated powers to put beyond doubt at an early stage that the proposed measures fall within the legal power of the Authority. This will assist both planning and exercising stages, so that all authorities engaged in a response clearly understand roles and responsibilities, as well as avoiding delays while conducting legal arguments during an incident. To date AMSA has relied on its general powers to take such measures as it considers necessary in order to direct persons other than the owner or master of a casualty or the salvor in possession of the ship. Practical experience has shown that it is desirable to bring out in the legislation a wider range of persons that can be directed and the type of actions that we can direct. This includes the clear authority to direct persons ashore who may be able to provide facilities or services to assist a casualty, as well as those who may impede our actions, such as a local harbourmaster or even a State Minister who wants to protect their own local interests. Importantly the new specific powers will clearly state that AMSA has the authority to determine a place of refuge for a casualty and that AMSA directions will prevail over those of any other person, to the extent of any inconsistency. This will enable AMSA to over-ride any local harbour or environmental authorities seeking to exclude a casualty from a particular port or other place of refuge for fear of localised pollution. In agreeing to the national emergency response arrangements, federal and State Governments have recognised that there may be a need to accept, and manage, some 7

localised pollution in the national interest of preventing pollution on the scale of the Prestige. The amendments will also enable AMSA to specifically requisition assets such as towage vessels during an emergency and to direct the owners and masters of other vessels to assist a casualty. This is an important power in relation to accessing emergency towage vessels of opportunity that might otherwise be engaged on commercial contracts and whose owners or masters may be reluctant to make the tug available. Liabilities and Immunities (Slide 12) A particular concern of industry and port authorities during consultation has been the potential commercial impacts on their own and their clients operations if AMSA were to commandeer a tug or offshore support vessel to assist a casualty, especially where that left the port with insufficient tugs to work ships in port. In some cases the flow-on business costs from port closure or significant delays in turning around ships in ports could be considerable. Accordingly, the proposed amendments to the legislation will enable AMSA to direct the temporary release of contractual obligations where those are likely to impede or interfere with the carrying out of another direction. There also will be introduced a responder immunity clause that provides for a person issuing or complying with a direction to be immune from civil or criminal proceedings against them. These two provisions will provide protection to persons subject to directions, aimed at encouraging compliance by removing fears of being sued for breach of contract damages by their business clients or being prosecuted by other authorities, for example if a port authority agrees to provide a berth for a casualty which subsequently pollutes the port and an environmental agency wishes to prosecute them. However, it is essential that the internationally agreed principle of the ship-owner s liability for any subsequent compensation claims is maintained. We do not want to inadvertently allow the shipowner to escape liability by claiming responder immunity when complying with a direction not least because we would wish to recover our own costs of any intervention actions from the ship owner! Accordingly the amendments will preserve the shipowner s liabilities as provided for under international conventions, notwithstanding the responder immunity provisions. Penalties (Slide 13) Penalties under Australia s intervention legislation have not been increased since 1981, and are now considered inadequate to encourage compliance, especially when commercial considerations may mean it is cheaper for a person to pay the fine for non-compliance with a direction than to wear the costs of disruption to his commercial contracts. The current penalties for failure to comply with a direction are $20,000 for an individual or $50,000 for a body corporate. In many cases assets such as tugs or 8

offshore support vessels may be hired out at daily rates exceeding the $50,000 penalty. Accordingly penalties are being increased to a maximum of 2000 penalty units (currently about $220,000) for an individual or a term of imprisonment not exceeding 5 years. Liability Conventions (Slide 14) As noted, the emergency response arrangement is not intended to alter the responsibilities of the shipowner under current liability regimes in the event of an Australian Government (AMSA) response to an incident. The costs of individual responses, including liabilities for compensation to relevant stakeholders in the event of pollution or other damage, will be borne by the owner of the ship requiring assistance. This is in accordance with the generally applicable principles, under international conventions and domestic laws, including any right of shipowners to limit their liabilities in various circumstances. Australia is presently party to the IMO s Civil Liability Convention (CLC), the Limitation of Liability for Maritime Claims Convention (LLMC) and the Fund Convention (Fund). Action is now being taken for Australia to ratify additional conventions that will increase the level of compensation in the event of an oil spill and close the remaining gaps for pollution from bunker fuels or hazardous and noxious cargoes. We are aiming to implement the Supplementary Fund Protocol of 2003 by the end of 2006, which will increase the maximum shipowners liability for a single incident in the event of oil pollution damage to around A$1.3 billion, including amounts available under CLC and Fund. Australia also has commenced consultations with industry and government agencies to enable Australia to accede to the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (Bunkers) by the end of 2006 and the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 (HNS Convention) by the end of 2007. Both conventions are yet to come into force internationally, and it is hoped that Australia s accession will assist in bringing the conventions into force sooner. Ship tracking and reporting (Slide 15) Non-reporting, or delays in reporting, of incidents remain a major problem for RCCs in being able to respond early enough to avoid a casualty becoming a major pollution incident. AMSA is addressing this issue by enhancing its capability to actively monitor ships movements, so that it can see if ships are behaving oddly and can call up to ask for an explanation of errant behaviour or warn of potential navigational safety hazards, and to offer assistance if required. 9

AMSA has an extensive coverage of the Great Barrier Reef region using Automatic Identification Systems (AIS), INMARSAT C polling and radar. There are already five radar and seven AIS sites in the region and we are aiming for full AIS coverage of the region north of Cairns this financial year and of the region south of Cairns next financial year. In addition we are seeking cooperation from State maritime authorities and port authorities for AMSA to access data from their local AIS stations to give further coverage of major shipping concentrations around the coast, including such areas as Sydney, Brisbane, Fremantle and Port Hedland, and planned future roll-out of AIS in all Queensland ports. AMSA is the Australia-wide licence holder for the two AIS frequencies, permitting it to operate AIS ashore. AMSA can, at its sole discretion, permit other parties to operate shore-based AIS. AMSA has made it a condition of such licensing that AMSA may obtain the AIS ship data, at AMSA s cost, and use licensed AIS stations to transmit safety, environment protection and SAR related information during an emergency. (Slide 16) We are pursuing further installations of AIS infrastructure around the coast to provide coverage in areas where there is an increased navigation/, safety or environmental risk. AMSA is using its National Plan oil spill risk assessment model to assist prioritisation for its AIS roll out. Priority areas, in addition to the Great Barrier Reef, include Bass Strait and the North West Shelf/Timor Sea, where there are significant offshore oil production facilities, and the approaches to major ports. The roll out strategy will take into account existing and proposed AISA installations by port and State marine authorities. In addition, AMSA s four new dedicated search and rescue aircraft will be fitted with AIS receivers, enhancing the SAR effectiveness and overall ship identification and tracking capability. In the Great Barrier Reef region, INMARSAT C polling also provides near real time position reports through the whole region. Usually polling is done at 15 minute intervals for each ship entering the region, but this rate can be increased if required. Legislation has also been passed by the Queensland Government to provide data from fisheries Vessel Monitoring Systems within the Great Barrier Reef, that will enable data on fishing fleet movements to be integrated into the overall surface picture for the region. Development of the Australian Maritime Identification System (AMIS), intended to present a more comprehensive picture of maritime traffic within Australia s EEZ and coastal waters, is currently proceeding with a target for implementation by June 2008. The data to provide an effective maritime picture exists within various organisations already, but the objective of AMIS is provide a consolidated picture in a single place, which can then be distributed as required to relevant agencies. The main system objective is to collect data on legitimate maritime activity so that investigation resources can exclude these targets and focus on those which are more of interest to each agency. 10

AMIS is being developed under the aegis of the Joint Offshore Protection Command, primarily for security purposes. Data will be made available to external organisations depending on where it is sourced from and the security rating of the recipients. AMSA will participate as both a data provider and user for its emergency response, Search and Rescue and pollution response purposes. Australian Maritime Safety Authority 28 February 2006 References http://www.aph.gov.au/house/committee/trs/salvage/report.htm http://www.amsa.gov.au/marine_environment_protection/risk_assessment_of_eme rgency_towing_and_salvage/index.asp http://www.amsa.gov.au/marine_environment_protection/national_maritime_emerg ency_response_arrangements/ http://www.amsa.gov.au/about_amsa/corporate_information/tenders/index1.asp 11