UK: An Update On The IMO’s Proposed Polar Code

Global warming in recent years has resulted in increased maritime traffic in the Northern Sea Route ("NSR"). Whilst the NSR offers both time savings in terms of voyage duration and also bunker cost savings, navigating the Arctic presents a number of challenges for the shipping industry and raises a number of safety and environmental concerns.

As a result, the International Maritime Organisation ("IMO") has produced a draft Polar Code to cover all aspects of shipping in the Arctic and Antarctic areas. The Polar Code comprises a set of mandatory safety and environmental protection regulations, together with non-mandatory provisions relating to both. In May 2014, the IMO's Marine Safety Committee ("MSC") agreed and approved in principle the mandatory safety provisions and then formally adopted them in November 2014. Furthermore, in October 2014, the IMO's Marine Environment Protection Committee ("MEPC") agreed many of the environmental protection regulations, which will become mandatory under the International Convention for the Prevention of Pollution from Ships ("MARPOL").

The MEPC is expected to adopt the Polar Code and associated MARPOL amendments in May 2015. The IMO Council should then formally approve the final Code, which is expected to come into force in January 2017.

This article considers why a Polar Code was deemed necessary and highlights its principal provisions.

The background

The NSR (also known as the North East Passage) runs along the Russian coast from the Atlantic to the Pacific and has historically been used for domestic Russian shipping. Climate change that has reduced the levels of ice in the Arctic Sea in recent times, however, has resulted in the NSR increasingly attracting international commercial shipping. While the NSR is only available for part of the year, namely the period covering late summer and autumn, nonetheless the number of international commercial transits has been steadily increasing annually since 2009 and this general rising trend is expected to continue in the long term, despite a reported fall in transit permit approvals by the Northern Sea Route Administration ("NSRA") in 2014.

In addition to the bunker cost and time savings that the NSR brings, the risk of piracy for ships travelling via the Gulf of Aden has proved an additional attraction of the NSR. Nonetheless, the shipping industry faces a number of concerns arising out of transits through the NSR. These include the challenges of harsh and extreme weather conditions, restricted visibility, poor communications, unreliable navigational aids, risk of contact with icebergs, under-developed casualty response infrastructure, potential remoteness for salvage and clean-up facilities in the event of an incident, lack of bunkering facilities, and so on. Furthermore, due to the weather conditions, any wreck removal in case of a casualty is likely to prove both expensive and dangerous. If there is a collision or grounding in the NSR, there may also be a serious risk of oil pollution, which is especially problematic in the Arctic region because cold temperatures and ice may make the detection of oil in icy waters particularly difficult and the spilt oil less easy to contain and control. This in turn leads to a number of environmental, as well as safety, concerns. Marine underwriters will also have to decide how to price and reserve Arctic risks.

While Russia has federal laws regulating vessels transiting the NSR, the IMO has deemed it necessary to develop a mandatory international Code. Hence the draft International Code for Ships Operating in Polar Waters (the "Polar Code"), which the IMO has been working on since 2009.

The Polar Code

The Polar Code is not a self-standing convention, which would require a potentially lengthy ratification process before it came into force. Rather, the mandatory safety regulations of the Code will be implemented through the International Convention for the Safety of Life at Sea 1974 ("SOLAS") and the mandatory environmental protection regulations will supplement and be adopted via amendments to MARPOL. The Antarctic area is already established as a Special Area under MARPOL Annexes I and V and the Code aims to replicate many of those provisions for the Arctic area. The Code also comprises non-mandatory but recommended safety and environmental measures.

A key provision is that all vessels will be required to carry a Polar Ship Certificate as well as a Polar Water Operational Manual at all times whilst operating in the polar regions. The Polar Ship Certificate will classify vessels according to the suitability of their design for operating in polar waters. Issuing the Certificate would require an assessment that takes into account the range of operating conditions and hazards the vessels may encounter in polar waters. The assessment would include information on identified operational limitations and plans or procedures or additional safety equipment necessary to mitigate incidents with potential safety or environmental concerns.

The Polar Water Operational Manual is designed to provide the owner, operator and crew of vessels operating in the polar region with sufficient information about the vessel's operational capabilities and limitations to support their decision-making process.

The combination of these two documents is intended to provide key information about the vessel's operational capabilities and limitations – such as Polar Ship Class and Ice Class, temperature capabilities, safe ice-going capability and ice transit capability – as well as the procedures that have to be followed routinely and in worst case scenarios.

Other noteworthy safety provisions include rules dealing with stability, ship structure, watertightness, machinery and operational safety, fire safety, life-saving appliances, navigation, communications, manning and training, and voyage planning.

As regards the mandatory environmental protection regulations, these include measures designed to prevent oil pollution, pollution by noxious liquid substances from ships, pollution by sewage from ships and pollution by discharge of garbage from ships. MARPOL Annexes I to V will be amended accordingly to introduce these regulations.

Some of the non-mandatory recommendations of the Code include a recommendation to refrain from carrying heavy fuel oil as cargo or fuel in the Arctic and a recommendation to apply the standards contained in the Ballast Water Management Convention, which has not yet entered into force.

Comment

Concerns have been expressed that the Polar Code does not take account of the fact that conditions in the Arctic are never uniform and that the Code does not link the ice-classes of vessels with the actual ice conditions prevailing in the polar regions. However, it is anticipated that industry standards will be developed to deal with such concerns. By way of example, POLARIS (Polar Operational Limit Assessment Risk Indexing System) has already been developed by the International Association of Classification Societies ("IACS") with the help of Arctic counties, such as Denmark, Finland, Sweden, Russia and Canada. POLARIS reportedly provides a chart listing the level of risk against each type of ice condition and how these apply to the different ice classes of vessel. Other industry standards are likely to follow.

There have also been criticisms from environmental organisations that the Code does not go far enough and that it fails to address certain marine safety and environmental protection issues. Notwithstanding these criticisms, the Polar Code is arguably a significant step in ensuring that any safety and environmental risks presented by increasing Arctic maritime traffic are both contained and controlled.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.