April 2004

Notes From Parliament Hill

Marine Security

Ever increasingly the subject of marine security seems to dominate the regulatory agenda these days

The International Ship and Port Facility Security Code (the Code) was ratified in December 2002 by the International Maritime Organization as an amendment to the SOLAS Convention of 1974. The Code will be enforced worldwide by port states from July 1st, 2004 and at that time the Code will apply to all passenger and cargo ships of over 500 gross tons in addition to mobile offshore drilling units.

In short, the Code requires the completion of security assessments and security plans, and the designation of security officers.

The US Coast Guard have adopted the position that each foreign flag ship will receive a "verification boarding" the first time the ship calls at a US port after July 1st. Entry will be denied to all ships that lack a valid International Ship Security Certificate.

The Code, in effect, opens for scrutiny a ship's trading history and ports known to have lax security or those ports in countries that have not yet signed off on the Code are going to win ships extra attention from the regulatory authorities, and such attention will inevitably result in delays.

The port state is required to accept a valid International Ship Security Certificate "at face value" unless, that is there are clear grounds to believe that the ship is not in compliance with the Code. Ship owners, in this age of increased security awareness should be under no doubt that the regulatory authorities will seek "clear grounds" to lay the foundation for subsequent ship inspections by reviewing security records and also by observing and interviewing crew members after July 1st. Ship owners are therefore best advised to keep good security records and to prepare their crews for the inevitable interviews.

Canada is on course to meet the July 1st deadline. Marine Transportation Security Regulations implementing the requirements of the Code have been approved by the Governor in Council for publication in the Canada Gazette, Part II on June 2nd, 2004. In addition, the Government of Canada has recently established a Contribution Program to assist ports and port facilities with the added cost of security enhancements.

The Code and the impending regulations, in addition to enhancing marine security in Canada may also benefit the embattled Canadian Coast Guard. The Coast Guard is presently trying to break out of its cocoon at the Department of Fisheries and Oceans and transform itself into an independent agency reporting to the Minister of Transport. The Agency is seeking to be charged with primary responsibility for marine search and rescue, emergency environmental response and marine pollution prevention, in addition to marine security.

Marine Ship-Source Pollution

While the subject of security continues to denominate the marine regulatory agenda, thankfully it does not occupy the field exclusively. Canada is presently in the throes of an election with an expected outcome late next month (June 2004) of a minority liberal government. Before Parliament was dissolved earlier this month, the government introduced new legislation to amend the Migratory Birds Convention Act, 1994 and the Canadian Environmental Protection Act, 1999. The amendments were introduced in large part, to address the seemingly endless problem of the illegal discharge of oily waste at sea off the south coast of Newfoundland.

In recent years, the government has been buoyed by the prosecution of ships such as the Baltic Confidence and the CSL Atlas which resulted in fines as high as C$125,000. 00 (USD 86,000.00).

One of the world's busiest shipping routes and one of Canada's most sensitive seabird habitats converge off the south east coast of Newfoundland and recent data from Environment Canada would suggest that more than 300,000 birds die each year as a result of ships deliberately dumping bilge waste in the shipping channel.

The legislative amendments follow the example of the Canada Shipping Act and increase the maximum penalty available under the Migratory Birds Convention Act to C$ 1 million, extend the jurisdiction of both Acts to include the exclusive economic zone out to the 200 nautical mile limit and place an express reference in the Migratory Birds Convention Act to permit the prosecution of ships officers.

The subject of marine ship-source pollution tends to be non-partisan and the possibility of a minority liberal government after Canada's Election Day on June 28, 2004 bodes well for the reintroduction of this legislative initiative.