The U.S. Coast Guard allowed the Cyprus-flagged Hollandic Confidence to enter San Francisco Bay only after determining that the ship, damaged during a storm, posed no danger to the port.
In the days of sail-driven ships, a vessel in distress could count on the nearest port to provide shelter from severe storms, fire, or even mutiny. The concept of force majeure (superior force) allowed a vessel to enter inland or territorial waters "when necessary for the safety of the vessel or persons on board," under circumstances where entry normally would be denied or restricted.
The concept remains in effect today even though commercial shipping now involves much larger engine-driven vessels, laden with such great amounts of oil or hazardous cargo that some believe the threat the vessels pose to a port and the surrounding environment may outweigh their right to seek shelter.
A recent incident raised the question of whether the Coast Guard may deny entry to a vessel claiming force majeure if she poses a threat to the environment of the coastal state. On 5 March 1999, the Associated Press released the following account of the situation:
A stricken freighter carrying a cargo of sulfur was sailing in circles about 60 miles off the Golden Gate today while a Coast Guard inspection team searched for damage. The freighter was damaged in a storm, which tore off a hatch cover and flooded a cargo hold. The weight caused the freighter to ride low, with the bow at times completely under water. One cargo hold remained flooded but the crew pumped water from another section of the ship, [said] the Coast Guard. The crew was fighting 30-foot seas and 60-knot winds when the ship lost the hatch cover.
The Coast Guard team boarded the Cyprus-flagged Hollandic Confidence at about 7 a.m. to determine if the vessel could enter San Francisco for repairs. 'The situation improved greatly during the night and things have stabilized,' said Lt. Rich Teubner of the Coast Guard Marine Safety Office, [adding] 'The ship is in good shape.' At one point, officials considered taking the crew off the ship, which carried 200,000 gallons of fuel, according to the Coast Guard. Two cutters are escorting the freighter. Teubner said there is no immediate environmental danger. He described the ship as 'loitering' outside the gate. The ship was sailing from Vancouver, British Columbia, on a voyage to China when it took on water in heavy seas 65 miles southwest of Eureka. There were no injuries among the 23 Ukrainian crewmembers.
The following day the Hollandic Confidence was permitted to enter the port where she was repaired without incident.
Since the 1820 case of The Francis and Eliza, it has been well established that a coastal state has the authority to investigate a vessel claiming force majeure to verify that the need is bona fide. It is also clear that a vessel entering port as a result of force majeure receives limited legal immunity from the enforcement of laws breached by the vessel's entry. What is unclear is whether a bona fide claim of force majeure creates a "right of entry" into the coastal state's port and, if so, is that right absolute?
In an 1809 British case, Sir William Scott held that bona fide distress "must be at all times a sufficient passport for human beings and entitle them to the rights of hospitality in British ports." According to McDougal and Burke's treatise, The Public Order of the Oceans, there is a universally accepted, customary right of access that arises from a humanitarian obligation to admit vessels in distress.
Two 1979 cases refer to the "right of entry in distress" or the "Safe Harbor Theory" in a manner suggesting that if a vessel is in fact in distress, there is a right to enter the nearest port for shelter or repairs. In U.S. v. Postal, the court stated that foreign vessels may be excluded altogether, subject to the fight of entry in distress. In an effort to stop a prosecution for marijuana possession, the defendants in N. Y. v. Nissen claimed immunity from the laws of the United States because their vessel was in distress and seeking a safe harbor when the Coast Guard boarded the vessel and seized approximately 14,000 pounds of marijuana. The court stated that "a foreign vessel has the right to enter the territory of a state when such entry is necessary for the safety of the vessel or persons aboard," but remanded the case to the trial court to determine whether the claim of force majeure was legitimate.
Both cases refer to the American Law Institute's "Restatement, Foreign Relations Law of the United States 2d," Section 48, which states in part:
Section 48. Entry in Distress
(1) A foreign vessel or aircraft has the right to enter the territory of a state when such entry is necessary for the safety of the vessel, aircraft or persons aboard, and to leave the territory once the conditions that made the entry necessary have ceased to exist.
The current "Restatement" (the 3rd edition) limits its discussion of force majeure to the inability of a coastal state to exercise jurisdiction over a vessel "driven to take refuge in a port by force majeure or other necessity." Thus, it is unclear whether the authors believe that the "right" previously described in the Restatement (2nd edition) no longer exists or whether the detail was eliminated merely to save space.
A 1993 memo from the Coast Guard Office of Maritime and International Law to the Chief, Port Safety and Security Division, stated that the duty of the Coast Guard under the doctrine of force majeure "is not one of 'granting permission' to enter (entry is a right under a valid claim), but rather one of withholding otherwise appropriate law enforcement activity." The Coast Guard's Commander's Handbook on the Low of Naval Operations refers to the Safe Harbor theory thus:
3.2.2 Safe Harbor. Under international law, no port may be closed to a foreign ship seeking shelter from storm or bad weather or otherwise compelled to enter it in distress, unless another equally safe port is open to the distressed vessel to which it may proceed without additional jeopardy or hazard. The only condition is that the distress must be real and not contrived and based on a well-founded apprehension of loss of or serious damage or injury to the vessel, cargo, or crew. In general, the distressed vessel may enter a port without being subject to local regulations concerning any incapacity, penalty, prohibition, duties or taxes in force at that port.
In The Law of the Sea (2nd edition) Churchill and Lowe, refer to the right tangentially when discussing the general right of access to ports stating, "there is, indeed, very little support in State practice for such a right, except for ships in distress seeking safety, which enjoy a fight of entry recognized in cases such as The Creole (1853) and The Rebecca (1929)." The Law of the Sea specifically includes force majeure as innocent passage.
Thus there appears to be a recognized right under international law for a vessel in distress to enter a foreign port. The question now presented is whether that right is absolute or if it is qualified by other factors related to the safety of the harbor and coastal state inhabitants. McDougal and Burke state "If the entry of a vessel in distress would threaten the health and safety also of the port and its populace, exclusion may still be permissible." The American Law Institute's "Restatement, Foreign Relations Law of the United States 2d," addressed this question in the reporter's note to Section 48 which states in part:
Entry in distress creating danger to coastal state. It is possible to imagine situations in which entry in distress of a foreign vessel would create a danger for the coastal state such that the only means of protecting itself would be to prevent the entry of the vessel. Such a situation might be created by a nuclear-powered vessel whose reactor had become defective and was emitting dangerous radiation. This type of situation has not yet arisen. Usually, the question whether the vessel presents a danger to the health or safety of the state has arisen after the vessel has entered, as in the case of a vessel whose crew is struck by an epidemic disease. It would be difficult to state an exception to the rule to cover the type of situation in which an entry in distress might create a danger sufficiently great so as to justify barring entry without creating an opportunity for abuse of the rule.
This passage accurately identifies the dilemma posed by a general statement that the coastal state may deny entry to vessels that pose a threat to the coastal state or inhabitants. By giving the coastal state the discretion to determine what constitutes a threat, abuses of the rule could eviscerate the right.
In one of the largest oil spills to date, Morocco, Spain, Portugal, Senegal, and the Cape Verdes each refused to allow a leaking super tanker to enter their port for repairs. On 19 December 1989 an explosion ruptured the tanks of the Iranian super tanker Kharg-5. After the crew was evacuated, a fire-fighting and salvage crew boarded the burning vessel, put out the fire, and began towing the vessel in search of calm seas to effectuate repairs to stop the leaking oil. Environmentalists claimed that the oil slick could have been contained earlier had the Spanish and Moroccan governments allowed the vessel into sheltered waters for repairs. No country would allow the vessel to enter its waters, however, and the salvage team was forced to attempt repairs and transfer of the remaining oil to another tanker in rough seas.
The New York Times reported that the salvage team felt it could have repaired the leak in two or three days and reduced the amount of spilled oil by half were it not for the absolutely terrible working conditions offshore which included high winds and 20 foot waves. When the leaking finally stopped 15 days after the explosion, the super tanker had released 70,000 tons of crude (19 million gallons), nearly twice the amount involved in the Exxon Valdez disaster in Alaska. Although the Kharg-5 slick covered more than 100 square miles, little damage was done to the shore because the churning seas broke up the spilled oil and warm temperatures evaporated much of the spill before it reached the coast.
One maritime scholar states "while ships in distress should in most cases be given access to ports, there might be circumstances in which the port (or coastal) state's interests override those of the ship in distress." In The Toledo, a 1995 case in the Admiralty High Court of Ireland, Mr. Justice Barr thoroughly addressed this situation.
The Toledo, a vessel carrying a cargo of potash, a non-pollutant, encountered ten days of heavy weather in the Atlantic, which created a 30-foot hole on the vessel's port side, and the ship altered course for the nearest port (Bantry, Ireland). When she was 270 miles southwest of Bantry, the captain issued a Mayday call. Amidst two explosions in the water-filled hold, the crew was evacuated and a salvage tug began to tow the vessel. The Department of the Marine decided not to allow the vessel to enter Irish waters, which forced the vessel to head for Fal mouth, United Kingdom. ED route, the vessel encountered severe weather again and the salvage crew was forced to beach the vessel at St. Gerran's Bay in the United Kingdom. The cargo was washed out to sea and the oil on board was removed to a tanker. The insurers declared the vessel a constructive total loss and she was towed off and scuttled.
The vessel's owners then sued the Minister for the Marine for denying them the right to the benefit of a port of refuge pursuant to established custom or usage in international law. Mr. Justice Barr held that "the vessel was in such serious distress that, prima facie, she required to be towed to and was entitled to the benefit of a port or anchorage of refuge in Ireland, being the nearest State having such facilities, in order to avoid a significant risk of total loss." He then assessed the right of the state to refuse a vessel in distress, notwithstanding the gravity of her situation, noting that the right of refuge had developed when ships were sail-driven and rarely presented any significant risk to the coastal state. He declared, however, that there has been "a fundamental metamorphosis in the development of shipping. . . [now" vessels in serious distress may present a major risk of damage to the receiving state." Summarizing his thoughts on this metamorphosis, he stated that the greater risk of damage has created a new emphasis on "the distinction between ships in distress where a humanitarian consideration of risk to life is involved and those . . . where the risk to vessel and cargo is purely economic in nature."
Describing five instances between 1978 and 1981, Mr. Justice Barr held that "a modern practice of states is evolving whereby humanitarian and economic aspects of maritime distress are distinguished and that access to safe havens is frequently refused where safety of life is not involved." Further, he stated for the first time the rule that a coastal state "has a right in customary international law to refuse on reasonable grounds a haven of refuge to a foreign ship which is in serious distress." The term "reasonable grounds" is described as "a significant risk of substantial harm to the state or its citizens if the casualty is given refuge and that such harm is potentially greater than that which would result if the vessel in distress and/or her cargo were lost through refusal of shelter in the waters of the coastal state." This rule applies only when there is the "absence of any risk to human life" on board the vessel.
One of the cases cited by Justice Barr was the Holland-America Line cruise ship Prinsendam, which caught fire off the Alaskan coast on 5 October 1980. In that incident, 524 crew and passengers (most elderly) were rescued from the burning vessel. After the evacuation, Holland America requested permission to tow the vessel into calm coastal waters to allow the fire fighting and salvage team to extinguish the engine room fire. The Coast Guard refused and ordered the captain to keep the Prinsendam at least 50 miles off the Alaskan coast for fear the vessel would sink and pollute the beaches.
Thus, it is clear that the primary concern regarding force majeure today has shifted to concern for human life. There is a balancing test between damage to the vessel or cargo and damage to the surrounding environment. Provided adequate measures are taken to ensure the safety of the crew and passengers, the U.S. Coast Guard must have the right, in exigent circumstances, to deny entry to a vessel that poses a significant risk to the people or the environment of the coastal state.
Such a decision cannot be taken lightly; however, and the Coast Guard must consider that an unjustified denial could expose the service to liability for unnecessarily causing harm to the vessel. The mere specter of potential danger from a vessel in distress is not enough; there must be significant risk of substantial harm that would be created by allowing the vessel to enter the safety of the harbor. This standard should protect adequately the international right to entry in distress and innocent passage without subjecting the safe harbor to an undue burden of danger posed by the vessel in distress.
There remains an internationally recognized right for a vessel in distress to enter the nearest safe harbor. If such an entry would create a significant risk of substantial harm to the coastal state or its inhabitants, however, the Coast Guard may deny entry, provided it takes all measures necessary to save the lives of the crew and passengers onboard the distressed vessel. Only after careful consideration of the nature and urgency of the distress, the danger posed by the vessel and the available alternatives should the Coast Guard deny a vessel in distress entry into a safe harbor.
Mr. Cook is an honors attorney with the Department of Transportation assigned to the U.S. Coast Guard’s Office of Maritime and International Law. Prior to attending law school at the University of Florida, he spent six years on active duty as an officer in the U.S. Navy.