Polar Code Rings in the New Year for Arctic Shipping
On January 1, 2017, the vessel safety and pollution prevention components of the International Maritime Organization's (IMO) International Code for Ships Operating in Polar Waters (the Polar Code) will come into force in designated waters in the arctic and Antarctic. On November 2-3, 2016, speakers at the promise of the arctic conference in Seattle convened by this magazine and the Philips Publishing Group addressed the coming Polar Code and its impact on North Pacific and arctic Ocean shipping.
Origins of the IMO Polar Code can be traced in part to the 1989 Exxon Valdez disaster, in which a laden, single-hull tanker ran aground while attempting to avoid ice in the Prince William Sound traffic lanes, spilling 11 million gallons of crude oil. The Code builds on the IMO's voluntary Guidelines for Ships Operating in arctic Ice-Covered Waters issued in 2002, Guidelines on Voyage Planning for Passenger Ships Operating in Remote Areas adopted in 2008 and the Guidelines for Ships Operating in Polar Waters, which followed in 2009 (the polar waters guidelines were extended to Antarctica after the 2007 sinking of the passenger vessel MV Explorer). The arctic Council's 2009 arctic Marine Shipping Assessment (AMSA) acknowledged the value of the voluntary guidelines, but recommended that they be replaced with a mandatory code and associated amendments to existing IMO conventions. Former IMO Secretary-General Koji Sekimizu took up the challenge and made adoption of a mandatory code a priority in the final years of his term.
The vessel safety elements of the Code and the related SOLAS amendments adding chapter XIV were adopted by the IMO's Maritime Safety Committee (MSC) in 2014. The environmental protection measures of the Code and the related MARPOL Annexes I, II, IV and V amendments were adopted by the Marine Environment Protection Committee (MEPC) the following year. The STCW amendments necessary to implement the Code's chapter 12 training requirements for masters and deck officers on ships operating in polar waters were scheduled to be adopted by the MSC at its November 21-25, 2016 meeting.
Polar Code Applicability
The Polar Code safety requirements apply to cargo ships over 500 gross tons and passenger ships on international voyages in polar waters. The environmental protection requirements apply to all vessels operating in the covered polar waters. Polar waters are defined to include arctic and Antarctic waters. arctic waters are, with some exceptions for Iceland and Norway, those north of 60N latitude. For Alaska, that means the ports of Nome (64.5N), Port Clarence (65.2N), Kivalina (67.7N), Kotzebue (66.9N), and those along the North Slope all lie within the waters covered by the Polar Code. Even though parts of Cook Inlet and Prince William Sound lie above 60N, the Polar Code arctic Waters definition does not extend east of the Bering Strait. As the Coast Guard has said "Ships that sail into Anchorage or Valdez may encounter ice, harsh weather and other risk factors, but they are not subject to the Polar Code."
The Polar Code adopts the now common risk-based approach and performance-based standards. Like other recently promulgated IMO codes, it includes mandatory and recommended measures. Part I-A prescribes the mandatory SOLAS-related safety measures, while Part I-B sets out the recommended safety measures. Part II-A lists the mandatory MARPOL-related environmental protection measures and Part II-B sets out the recommended measures. Covered vessels on a voyage that is in whole or in part in the above described polar waters must hold a valid Polar Ship Certificate and operate in accordance with an approved Polar Water Operational Manual (PWOM).
Few US Flag Vessels Have Sought Compliance Certification
In its capacity as a flag State and a party to the SOLAS and MARPOL Conventions, the United States has an obligation to prescribe and enforce construction, design, equipment, manning and operating standards for US flag vessels that are at least as strict as those set out in the Polar Code. At the same time, it has discretion to impose stricter standards for US flag vessels. Much of the US flag traffic through waters covered by the new Polar Code will be by tugs and barges that fall below the tonnage level that would trigger the requirement to comply with the Part I safety requirements. They will, however, fall under the Part II environmental protection measures, as well as the new Subchapter M regulations that came into force July 20, 2016.
On November 22, 2016, the Coast Guard issued a proposed rule that will authorize recognized classification societies to issue SOLAS Polar Ship Certificates. John Dwyer, Officer-in-Charge of Marine Inspection at Sector Puget Sound, reported that as yet his sector has not received any requests regarding Polar Code compliance, nor has Sector Anchorage or the Coast Guard's Marine Safety Center. That might be explained in part by the fact that the major Alaskan ports of concern, Valdez, Anchorage and Dutch Harbor, all lie outside of the waters covered by the Polar Code.
Concerns over Ice Navigator Training and Experience Standards
Notwithstanding the many predictions of ice-free arctic summers, the arctic will remain a dangerous maritime domain, particularly for those unfamiliar with the region's unique threats and challenges. The arctic Council's 2009 AMSA report highlighted that safe navigation in arctic waters depends much on the experience, knowledge and skill of the ice navigator. The report went on, however, to lament that "Currently, most ice navigator training programs are ad hoc and there are no uniform international training standards." Although some progress has already been made at the IMO, experienced polar operators have expressed concern about the adequacy of the training and experience standards. For example, under Regulation 12.3 of the Polar Code, the master and watch officers on a cargo vessel operating on "open waters" are not required to hold any polar waters training certificate, even though "open waters" are defined as waters with up to 10% ice coverage. And the master and watch officers on a tanker or passenger vessel operating in such waters would require only a "basic" certificate, which currently requires no actual experience in ice-infested waters.
One critic of the currently planned training and experience requirements is Captain David "Duke" Snider, founder and CEO of Martech Polar Consulting, Ltd, President of the Nautical Institute and author of the Institute's book on Polar Ship Operations. Snider worked extensively on development of the Polar Code as a then-senior vice president of the Nautical Institute and came away disappointed in what he sees as a watered-down standard. He has pointed out that "It is not sufficient to throw a bridge officer into a weeklong training course, even with 20 hours in a simulator, and expect he will be able to tackle polar ice navigation safely or efficiently." Captain Snider led efforts at the Nautical Institute to launch the Ice Navigator Project, with a view to providing a recognized standard of competence in ice navigation.
Other arctic shipping experts at promise of the arctic 2016, including Dermot Loughnane of Tactical Marine Solutions, Bruce Haland of Crowley Marine Solutions and Mike Lauer of Foss Maritime (which will launch its third ice-class tug next year), worry that arctic maritime safety may be endangered in the coming years by the entry of operators who lack experience in arctic waters. The poor tow planning, equipment selection and execution that led to the breakaway of the drill rig Kulluk from the AHTS towing vessel Aiviq off Kodiak Island in 2012 could be cited as an example. Aiviq was owned by Louisiana-based Edison Chouest Offshore at the time of the tow. Kulluk was carrying more than 150,000 gallons of oil when it ran aground. Damage to the rig was so extensive that it was later scrapped. Such marine casualties by inexperienced arctic operators could trigger a backlash against all arctic shipping, to the detriment of experienced and responsible arctic operators.
In anticipation of the Polar Code coming into force in 2017, the US Coast Guard issued a 2016 policy letter, to provide guidance on implementing the training requirements for personnel on Polar Code vessels. Dale Bateman, a retired US Coast Guard officer who deployed multiple times to the arctic and Antarctic aboard Polar Sea and Healy, now serves as Assistant Director of MITAG-PMI's west coast campus, where he has taken the lead in developing a training program to meet the coming training requirements for Polar Code vessels. He reports that so far there has been only limited inquiries regarding such training.
Canadian and Russian Regulations Stricter than Polar Code.
The international standards set out in the IMO Polar Code are sure to enhance vessel safety and protection of the marine environment in the covered waters; however, foreign vessels navigating the Northwest Passage (NWP) or the Northern Sea Route legs of the Northeast Passage (NEP) will find that the requirements imposed in those waters by the Canadian and Russian maritime regulatory authorities are in important respects stricter than the Polar Code.
Vessels navigating the NWP must be mindful of the Canadian Shipping Act, the arctic Waters Pollution Prevention Act and the Northern Canada Vessel Traffic Services Zone Regulations (NORDREGS). In the eastern waters of the NEP, vessel operators come under the Rules of Navigation in the Water Area of the Northern Sea Route, which the Russian Ministry of Transport published in 2013 under Article 234 of the Law of the Sea Convention applicable to ice-covered areas. Putting aside for now international disputes over the legality of the Canadian and Russian claims in some of those waters, which were identified in the 2009 AMSA report, operators of non-public vessels are finding it a practical necessity to comply with the regulations imposed by the two states.
Next Steps: A Polar Code Phase II?
In early 2015 – before the present Polar Code had been fully approved at the IMO – Dr. Adrianna Muir, the US State Department's Deputy Senior arctic Official, announced that the US was already lobbying other states to initiate a Polar Code Phase II process. Any Phase II would potentially address a number of issues. For example, heavy fuel oil is banned in the Antarctic waters covered by the Polar Code, but not the arctic. Vessel sewage, black carbon emissions and Ballast Water treatment and discharges have also been identified as matters that should be reviewed. As noted above, others have suggested that any Phase II process should revisit the crew training and experience requirements and the need for an experienced ice pilot or ice navigator on vessels operating in ice-infested waters. Dr. Muir also suggested that the IMO member-states may review whether to extend the Code's safety measures to non-SOLAS vessels. That could include fishing vessels and other vessels of less than 500 tons, and might also clarify whether the Code applies to vessels on wholly domestic voyages. Finally, difficulties in applying the present Port State Control regime to vessels that navigate arctic waters without entering any arctic coastal state's port might also be addressed.
Other promise of the arctic 2016 speakers noted that time is running out for the arctic coastal states to develop the infrastructure and search and rescue and spill response capabilities and capacities that must be in place to provide a level of readiness and resiliency commensurate with the risk posed to and by the expected polar shipping traffic. As vessel operators develop their Polar Water Operational Manuals, deficiencies in the external vessel safety system components that create or increase risk to arctic shipping will become obvious. In the short term, vessels will have to adopt and apply a risk-based approach that might well dictate a "no-go" course of action due to those external safety deficiencies. Experience under the Polar Code in its first year and measures to meet the Code's training requirements are sure to reveal other issues and will likely inform the discussion at any promise of the arctic 2017.
Craig H. Allen Sr. is the Judson Falknor Professor of Law and of Marine Affairs at the University of Washington, where he directs the university's arctic Law and Policy Institute.