Flags of convenience? Or connivance? And who's really accountable?
LOSS OF PRESTIGE
Sovereignty – The Flag Goes to Sea
Treaty of Westphalia 1648
IMO – International Maritime Organization
U.N. Agency regulating shipping… 1948
“Ships have the nationality of the State whose flag they fly … there must exist a genuine link between the State and the ship”.
UNCLOS Article 91(1)
“Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag”.
UNCLOS Article 94(1)
“Oh Hear Us When We Cry To Thee…
For Those in Peril On The Sea”
The Navy Hymn
The Bay of Biscay, the historically rich intrusion of the Atlantic between Europe proper and the Iberian Peninsula, forms a giant concavity with its axis oriented NW/SE. Open to the NW, Its often-stormy maw funnels the prevailing westerlies that supplement a weak current setting generally SE into the Bay with the French Atlantic coast to the north and east and Spain to the south. The “corner” forming the northwestern shoulder of the Peninsula is Spain’s Galician coast, a well known tourist destination and home to substantial fishing fleets and agriculture that forms a critical part of Spain’s economy. Although not part of the Bay’s littoral, Portugal’s northern coast abuts the western rim of Galatia. Shipping routes from Baltic and Channel ports en route to the Med and further east arc across its outer limits. One early November day in 2002 found the MT Prestige en route south to Gibraltar’s Strait. Enroute she will take Cape Finnisterre to port as she brushes Spain’s stormy Costa da Morte … the “Coast of Death”.
Built in Japan in 1976, Prestige was a single-hulled tanker, 42,820 gt with a dwt of 81,589. Owned by Mare Shipping (incorporated in Liberia) and registered (flagged) in the Bahamas, she was classed by the American Bureau of Shipping (ABS). Her Manager was Universe Maritime Ltd., based in Greece, and was insured by the London P&I. The charterer was Alpha Group’s Crown Resources (a Russian company registered in Switzerland) and the oil itself was reportedly (by one source) British-owned – by another, Russian. She sailed with a mostly Asian crew and a Greek captain.
ABS undertook her routine five-year inspection of Prestige including dry-docking, at Guangzhou China in April 2001. Her scheduled annual ABS inspection in Dubai was completed over an 11-day period in May 2002 and found to have satisfied her class requirements. She departed St. Petersburg in early November and proceeded to Ventspils, Latvia, where she took 77,000 tons of heavy fuel into her 12 tanks. Her Singapore destination would take her via the Baltic, the Channel and south across the Bay of Biscay and rounding the corner at Gibraltar, she would transit the Med, Suez, the Red Sea and on to east Asia.
Shortly after her inspection in Dubai however, warnings started to appear. On 23 July the captain had written a letter/fax to the owner requesting relief due to unsound conditions aboard. According to Frontline/World, he referenced repeated requests for repairs made since June 9.
On Aug. 16, Capt. Kostazos communicated with the Class Society listing nine specific deviancies/concerns regarding the safety of the ship including cracked and corroded beam parts in a ballast tank, non-working boilers, etc. His complaints were unanswered and he was relieved; his replacement, Capt. Apostolos Mangouras, took Prestige to sea.
(An ABS spokesman in communication with Frontline/World wrote that “ABS has no evidence that the fax was ever transmitted to ABS,” adding further that the usual procedure would be for the master to communicate his concerns to the owner.)
On Nov. 13, 2002, all was not well. Encountering a severe storm off the northwest Spanish coast, Prestige developed a starboard list due to flooding and lost propulsion. Counter-flooding reduced the list to about 4 degrees but eventually the heavy pounding of the sea tore a 50-foot gash below the waterline, rupturing one fuel tank, which gradually emptied to sea. The captain requested assistance, wishing to be towed to a refuge where the hull could by boomed, the leaking oil confined and the remaining 70,000 tons in her 11 intact tanks be transferred off. Spanish authorities refused and ordered her towed northeast at least 150 miles away from the coast. Fearing for her coast, France stepped in and redirected the distressed vessel away to the south.
Not to be excluded from this international maritime ping-pong, Portugal moved in to redirect the vessel back to the northwest. Storm battered with torn hull plating, Prestige continued under tow by a Dutch salvage company (SMIT). Finally, on Nov. 19, six days after the initial single tank rupture and the estimated loss of approximately 7,000 tons (10 percent of her cargo), and by then about 150 nm from the coast, Prestige was torn apart and the contents of the remaining 11 tanks, some 70,000 tons (90 percent of her original cargo) started its inevitable wind- and tide-assisted journey southeast, back toward the shores of those same countries that had refused assistance. The bullseye of the oncoming slick wass the Galician coast.
The crew having been taken off, Spain wasted little time in arresting Mangouras. Spain then commenced a row with Portugal as to which was responsible for the cleanup and with Britain, claiming that the ship was in reality headed to Gibraltar, not Singapore. (It would seem spurious as to where a vessel in trouble might be headed at the moment — a vessel in-extremis is, by definition, in trouble “now and here”). Not too long later, Spain’s suit against ABS was added to the legal wrangle (An aside: Interestingly, but not surprisingly, the ship’s “Flag State” never seemed to be mentioned in all that followed – its fluttering symbol now quietly furled despite the obligations specified by Article 94 of UNCLOS).
In November 2013, 11 years after Prestige went to the bottom, the Galatian Regional Court found that it was impossible to establish criminal responsibility and that the disaster was partly due to the vessel’s poor state of repair. Mangouras, however, was found guilty of disobeying Spanish authorities and given a ninemonth suspended sentence.
Prevented from leaving the country, Mangouras looked on while the Spanish government took exception to the Regional Court’s findings and filed for a new trial. Finally, this past January, the Supreme Court overturned the Galatian Regional Court’s findings and found the now 81-year-old Mangouras guilty of recklessness and sentenced him to two years in prison. The maritime world prays that this will not be a Spanish court’s cynical award of a death sentence.
The battering of her weakened storm-wracked hull, the breakup and subsequent sinking of Prestige releasing over 70,000 tons of heavy oil that lathered Spanish and Portuguese beaches and the economic devastation that followed is an event that has yet to be played out. Responsible parties ease quietly into the legal fog — tragic because of the losses suffered by so many, foreboding because (count on it), it will happen again, regrettable because it was preventable but in its finality, inexcusable. Sovereignty, authority and responsibility are almost purposely submerged, taking with them that which, in the end is most critical — accountability. If sovereignty implies authority – then the responsibility that comes with it encompasses accountability. The buck stops somewhere, but as of today …?
In 2004, a 104-page study by U.N. Office of legal Affairs (Division of Ocean Affairs and the Law of the Sea),“Critical Analysis of Flag State Duties as laid down Under Article 94 of UNCLOS 1982,” presents a detailed evaluation with several observations that underscore the situation. It notes specific duties of the flag state that accompany the “right” to register (flag) a vessel operating internationally in order to establish a “genuine link” between the ship and the state the flag represents …
… it is not possible to evaluate the effectiveness of those flag state duties without also considering the role and performance of the classification societies that in the majority of cases implement … duties of the flag states.
… that the ability to delegate such responsibilities … has sometimes led to denial on the past of flag states in shouldering the responsibility which always rests on them – the effective exercise of control over ships flying their flags.
…. that the issue being left out by the international community is the control of those who need to be originally and primarily regulated – ship owners, ship owning companies which are protected and hidden under corporate artifices and shams.
Over time, Class societies have formed the International Association of Classification Societies (IACS) in an attempt to maintain, if not raise, standards of those Recognized Organizations (RO).
Over time, questionable performance by open registries, flags of convenience, etc., resulted in development of port states, exerting control over heir waters and in coming together were forming protective shields of intra- and extra-regionally linked memoranda of understanding (MoU). That is a glimmer of a solution.
Currently, the “small print” in the documents of maritime authorities with (one might hope and expect) enforcement powers is more often tabulations of what they don’t do, what they’re not responsible for, etc. It seems that a reaction has developed in the direction of “OK, if you won’t be accountable for a ship you build, own, man, flag, control, inspect and send to sea, then we will exercise our authority, our sovereignty, as to whether she is admitted to/departs our ports. Port state control has bubbled up, the flotsam from a “system” that has failed. Port states, linked by their regional MoU(s) may in time be the salvation from the myth of flag state “control”, serving, at last to be where the buck stops.
Ironically, “sovereignty” may have done a 360 back to where it originated, to the state, but in this case – the port state! lastly, the final tribute to Prestige may be that single-hulled tankers are fading from the scene and that considerable progress on the international need for harbors of refuge is finally being recognized.
(Postscript …On Aug. 3, 2010, Spain had filed suit (No. 03 Civ.3573 (LTS)(RLE) against the ABS seeking $1 billion in compensatory and punitive damages. The federal District Court in New York’s Southern District considered the ABS counter — a request for summary judgment. ABS prevailed in its request and Spain lost her bid for damages. The court noted that “a classification society does not provide a global guarantee of a vessels seaworthiness, but rather whether the ship conforms to the society’s rules … the ultimate responsibility for the vessel’s seaworthiness rests with on the shoulders of the shipowner and the shipowner cannot delegate this duty to a classification society or any other entity.” (Emphasis added). In August 2012, the Second Circuit Court of Appeals upheld the lower court’s ruling.)