Have We Learnt the Lessons from Prestige

HAVE WE LEARNT THE LESSONS FROM PRESTIGE ?

Peter M Swift

Managing Director

INTERTANKO

St. Clare House

30-33 Minories

London EC3N 1DD

United Kingdom

INTRODUCTION

Without doubt the unfortunate accident to the Prestige, and before that the Erika, should have taught the shipping industry much. Whether the industry has learnt the lessons from the Prestige is however less certain.

The principal lessons for all of us must surely be that the industry’s performance is falling short of Society’s expectations, and that Society’s tolerance for such accidents is effectively zero. If we have not learnt those lessons then our industry is severely remiss. There are, however, other important lessons to be learnt,which are related to the general preparedness for such accidents, the response of the various interest groups, and the lack of understanding and trust between the different parties.

IMMEDIATE AFTERMATH

Since any significant tanker accident is a major news item, it is an absolute certainty that local, national and quite possibly international politicians will comment – most will wish to do so, others may feel it their duty to do so. Ideally the company and/or the industry involved will also be commenting and providing regular updates on events, and other interest groups will likewise be expected, or more likely will want, to comment.

While the pre-disposition of these different groups to each other will, to some extent, determine the nature of their overall comments, the respective agendas will generally be set by the circumstances at the time, and frequently by the expediency of the moment.

UNDERSTANDING THE AGENDA

One of the most important questions for industry must be to ask if we fully understand the agenda of others. Regrettably, industry regularly fails to appreciate the significance of the event to the local community, for whom this may well be a catastrophe of immense proportion. It may be appropriate in some quarters to talk about an improved safety record, less oil in the water, the economic necessity of the transportation for the good of Society at large, and so on, but that will count for nought to those whoselivelihood or way of life is threatened.Commenting remotely on such general facts about the industry is of no interest to the local community. Thus industry needs to be alert to specific concerns, and to express that recognition in the appropriate locations and to the appropriate audience, which of course includes politicians and media as well as the public.

Many politicians will want to lay the blame at industry’s door (– and will be forced to generalise if the particular parties involved are not clearly identified or physically present –) and will naturally want to see measures to ensure that such an accident will never happen again. While industry may view zero risk as an unrealistic goal, it is not easy, nor wise, to introduce the reasoning behind this into public debate at such times.

The political and public call will be for speedy action, for the punishment of the (real or perceived) guilty parties, and for new measures – including new legislation – to prevent re-occurrence. It is difficult, if not quite impossible, to argue that existing laws and regulations are sufficient, or that it is enforcement which is needed, when quite clearly something has failed.

It may also be that scapegoats are needed – especially if there is any suggestion of culpability on the part of a government or national administration, - and the detention of the master and/or crew, for whom there is probably very little sympathy locally, may be very “convenient” and is easily achieved.

Rather than agreeing, or even understanding, such “political” solutions, industry’s reaction will generally be cautious, and will frequently talk about meeting all statutory and class requirements, etc. Society already expects nothing less. By nature and by training, but probably correctly, industry will not want to speculate about the cause, will call for prompt and thorough investigation, and so on. The text book training will include statements of regret and sympathy, which too often have a hollow ring, and will consciously avoid any acceptance of responsibility or financial liability beyond the legal obligations. Any solutions proffered will be “technical” or operational.

Other interested parties, including local and international groups, will be mobilised quickly and look for the opportunity to promote their own agenda and may well look to capitalise on the response of the other parties, and in particular any flaws or weaknesses in their arguments.

Although not formally coordinated, there is often a natural alliance of interests between the different public and political interest groups, who may well legitimately be reflecting a significant quantity of, if not always all, public opinion. Industry responses are frequently disjointed and while the interests of the different industry parties are likely to be mostly aligned, there has thus far been little attempt to co-ordinate these either before or immediately after a major incident.

Sometimes, however, there are exceptions to these general alignments of interest groups and it isimportant that these are recognised. It may well be politically expedient for opposition politicians to take the opportunity to lay blame at the government’s door and even to take that campaign into the international arena, for example in Brussels. One must, however, seriously question if it is wise for industry to become embroiled in such political wrangling. Likewise others, even on the industry side, may find it opportune to take sideswipes at other stakeholders, including industry partners, as part of their wider agenda.

SEEKING SOLUTIONS

In both the short and longer term, politicians and legislators – representing legitimate public interest – will seek political and legislative solutions to the problems as they perceive them. Industry – often sharing the same “objective” as the politicians – will,however, generally propose “technical”, operational or other procedural solutions, sometimes believing that self-regulation may achieve more in the longer term than regulatory fixes.

Politicians and the public “demand” speedy action, while industry will take a longer-term view and will “demand” that we all understand the consequences of overly-hasty, knee-jerk reactions.

Post Prestige, industry proposed moving heavy fuel oils to double hull tankers, citing the advantages in grounding and collision situations and the potential reduction in the risk of major fuel oil spills close to shore. They even proposed changes to MARPOL to accommodate this. Politicians demanded the accelerated phase-out of all single hulls and extra surveys for those tankers not removed immediately from service.

Industry advocated measures at the global level, through the IMO. Politicians demanded more immediate action through regional legislation and national (port state) powers.

Industry wanted governments to ensure appropriate Places of Refuge. Politicians demanded more information about vessels and cargoes off their coastlines.

Industry talked of upholding the Law of the Sea (UNCLOS), MARPOL and SOLAS and of governments’ violations. Politicians challenged the interpretations and started to demand changes to UNCLOS and other legislation to protect their citizens.

Industry talked of “legal discharges” and the need for reception facilities to discourage and prevent “illegal” discharges. Politicians and governments encouraged and supported the interception and boarding of vessels on the high seas and sought funds for additional tracking of tankers and monitoring by spotter planes.

It is therefore reasonable to ask: was Industry listening? Do politicians care what industry says or thinks?

More importantly, industry should ask itself:

Do we appreciate what is expected of industry? And are we better prepared today to respond than at the time of the Prestige?

AS TIME GOES BY

– IN THE COLD LIGHT OF DAY

Two years on, it is now timely to review some of the post Prestige measures, the fall-out from the accident, and some of the lessons learnt.

Within the last few days we have seen published the Accident Report from the vessel’s flag state. Not surprisingly the initial reactions have been mixed. Laments at the lateness of the report; concerns about the value of lessons learnt; interested parties selectively picking up on the ship’s history, the denial of a Place of Refuge, and the treatment of the Master.

The investigation and reporting of high profile maritime accidents rarely achieve all that is wanted and indeed expected of them. In a way this is quite ironic, since all the parties involved appear genuine in their desire for an impartial and comprehensive analysis and review, with the aim of applying the lessons learnt to minimise the chance of re-occurrence. However, we all recognise the legal and often commercial impediments to meeting these objectives.

The aims behind the EMSA mandate to involve itself in improving the process of accident investigation are laudable but only time will tell if they will be any more successful than the current, woeful, process.

The shipping industry is notorious for its lack of adequate feedback mechanisms, - be it in the sharing of information among industry partners, in the linkage of experience from ships in service to shipbuilders and equipment suppliers and to a lesser extent to class, or in reporting and reviewing near-misses, to name but just a few. Many on the industry side also recognise the value of encouraging the greater reporting and analysis of the often minor or apparently less significant incidents and near-misses, since much can be learnt from such information sharing and reviews, with the very real prospect of actually reducing the likelihood of more serious events. The UK’s CHIRP (Confidential Hazardous Incident Reporting Programme) may be a suitable vehicle for this, but this will require much more support if this (or a similar model) is to be the really usable tool that it has the potential to be.

Industry would of course hope that one of the prime lessons learnt would be the acknowledgement of the importance of pre-planning for Places of Refuge. To their credit many governments have also recognised this need, and while there are frequently significant political difficulties to be overcome, it is nevertheless regrettable that in many countries the pace of implementation is still too slow, and in some cases there appears to be no action at all.

Concerned that not enough is being done to improve standards, several on the political side believe there is still a need to wield the “big stick” and thus the drive to penalise and criminalise the industry players.The industry’s reaction has understandably been to point out the counterproductive nature of many of the proposals and to stress the importance of working together to eradicate any and all substandard elements in the transportation chain. Within Europe, it is at least encouraging to hear more rational voices calling for additional “carrots” and appropriate measures to “incentivise” good performance. The human side, however, frequently appears to be left out of these considerations, and in particular the effects that existing and proposed new measures will have on both existing and future seafarers receiveinsufficient attention.

Coupled with criminalization, several have sought to increase the financial liability of the individual players, with classification societies currently in the firing line of those looking for scapegoats. It is therefore quite understandable that many in the industry are concerned about the consequences of further irrational challenges to this integral component within the industry’s regulatory system.

It is also worth reflecting on the attention that the recently revised CLC (Civil Liability Convention) and FC (Fund Convention) are receiving in comparison to the lack of attention to the case for ratification of the HNS (Hazardous and Noxious Substance) Convention and the Bunkers Convention, which would provide guaranteed compensation to the victims of spills involving these products. The political will is clearly greater for some steps than others.

As regards oil spill compensation and the adequacy of the system, many of Society’s concerns will have been addressed with the newly introduced higher CLC and Fund limits and the forthcoming introduction of the supplementary fund. Some concerns nevertheless remain about the sharing of compensation payments. Historically, there has been an overall balance in the compensation payments to victims made by the shipping and oil industries over many years. While in the vast majority of pollution cases it is only the shipping industry that is called upon to pay the compensation claims, both the Erika and the Prestige accidents highlighted that in the case of a statistically rare major pollution event the oil industry pays a substantially disproportionate amount of the total. Whether, in the future, with the new CLC and FC limits and the supplementary fund in place, an equitable overall sharing of all of the compensation payments will be maintained is a matter of conjecture. At the same time, it is to be hoped that the numerous post Erika and post Prestige measureswillresult in a substantial drop in the total number of pollution accidents, both large and small.And if successful, this in turn could have a significant impact on the sharing of the financial burden.

With the spotlight currently on the role of the P&I Clubs in the campaign to eradicate the substandard ship operator, it is most encouraging to note the very positive reaction of the International Group (IG) of P&I Clubs to the recent OECD report. In particular it is important to note their plans to make it less easy for a Club that has a claim from a fleet or ship of dubious quality to recover under the International Group’s pooling arrangements, and that they are considering raising the threshold above which a claim is “pooled”. In addition their plans to increase information sharing between the Clubs is welcomed and here they need industry’s support in their discussions with States to ensure that they do not fall foul of competition and confidentiality laws.

The Prestige and other accidents, particularly in European waters, have led many to question whether there is a proper balance between Flag and CoastalState interests in international legislation such as UNCLOS. These are legitimate questions and hopefully will be taken up in the appropriate fora and not through unilateral actions by the States concerned. In parallel, industry should also welcome the drives to put pressure on Administrations to adopt the IMO Flag State Audit programme as soon as it is ready to be rolled out and for Port State Control to further revise their targeting schemes.

It is also reasonable to ask if, following the Prestige, industry has recognized the even greater importance of being prepared for a major accident? The answer may be “marginally” yes, but certainly not as much as it ought to be. For sure ITOPF still leads the way in spill preparedness, even more so with its preparatory work to respond to HNS incidents. The EU, EMSA and individual states have reviewed their existing plans and are looking to enhance their capabilities and to coordinate salvage facilities and responses.Individually and collectively several of the cargo interests have also undertaken further reviews of their accident response plans, while shipping companies and their representative organizations have stepped up their Crisis Management and Communication procedures. However the industry has not yet come together and attempted to coordinate its responses, processes and communications in a casualty situation, and is therefore still exposed to the type of reactions witnessed after the Prestige, the Tasman Spirit and similar accidents.

The Prestige accident and other such high profile accidents have also brought about a renewed “focus” on the “image” of the shipping industry. The debate on this can be endless but,among other lessons, industry is slowly learning the importance of more effective communication, to a wider audience, and hopefully with a greater appreciation of Society’s expectations. This will require a long term and continuous effort and those engaged are well aware that many years of hard work can be lost in a very short time through poor performance when another accident occurs.

CONCLUSIONS

Have we learnt the lessons from the Prestige ?Hopefully yes !

The industry hopefully recognises that Society has very demanding expectations of our industry. The public expects, nay demands, that we deliver on the IMO’s slogan of “Safe, secure and efficient shipping on clean seas”.

To achieve this, there remains the need for:

• more transparency in all our actions,
• development of greater trust between the politicians (for whom the maritime industries generally represent a very small constituency), the public and the media, and the shipping industry; and acknowledgement that technical solutions do not necessarily meet political needs,
• even better accident preparedness and improved coordination by the industry partners; including of course clarity on Places of Refuge,
• industry’s participation in the development of effective regulation and self-regulation; coupled with the adoption, implementation and enforcement of those regulations and standards consistently and internationally, and
• recognitionthat continuous improvement is expected of all the partners in the shipping industry, to meeting the ever increasing expectations that Society places on us all.

Individually we can do much. Together we can make a real difference.

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