~ UTTE

E I N
R~'ORTH
E M A N N
Marine Poficy, Vol. 19, No. 6, pp. 453-467, 1995
Copyright © 1995 Elsevier Science Ltd
Printed in Great Britain. All rights reserved
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0308-597X(95)00035--41

A European lawyer's view of

the Government response to
the Donaldson Report
Glen Plant
Centre for Environmental Law and Policy, London School of Economics, Houghton Street, London
WC2A 2AE, UK

The Report of Lord Donaldson's Inquiry into the Prevention of Pollution from Merchant
Shipping, of May 1994, discussed here, is a document of the first rank of importance for all
those interested in shipping safety and the prevention of ship-source pollution. The UK
Government is called upon to take a lead internationally, regionally and nationally in these
interrelated fields, and its first published response, issued in February 1995, and many of its
initiatives, examined here, suggest that it has, for once, heeded the cries of a major inquiry. In
doing so, however, as is explained, it must constantly take into account major developments in
the European Community. While finally, many new ideas and approaches are embraced or are
being further considered by the Government, it is argued here that the whole process, by
keeping strictly within the bounds of existing international law and by emphasising voluntarism
(indeed, restricting strict enforcement actions to mere measures of last resort), it is somewhat
behind international trends, manifested in the acceptance of the principle of mandatory ships'
routeing and ship reporting systems and in the current debate on development of the
Particularly Sensitive Sea Area concept.

The origins and scope of Lord Donaldson's
Inquiry
In the early hours of 5 Janury 1993, the M/T Braer
lost propulsion in heavy seas in the Fair Isle Channel
about 10 miles off and roughly south of Sumburgh
Head, Shetland. Later that morning she stranded,
despite efforts to prevent this, at Garth's Ness,
South Shetland, and broke up over the ensuing days,
losing her entire cargo of 85 000 tons of North Sea
light crude oil, as well as some 1 825 tons of bunker
fuel and diesel oil, 2 when continuinsj bad weather
put paid to continued salvage efforts.J This incident
1'Safer Ships: Cleaner Seas: Government Response to the
Report of Lord Donaidson's Inquiry into the Prevention of Pollu-
tion from Merchant Shipping', Cm 2766, February 1995
(hereinafter 'Government Response').
2This is quite significant in the sense that it may have led to one of
Lord Donaldson's major themes, the need to extend most
protective measures to other types of vessel besides tankers, in
view of the potential pollution effects of bunker fuel, lubricants
and other oils carried on board ships other than as cargo; see, eg,
Inquiry Recommendation 57, which is accepted in principle by the
Government, Government Response, pp 32-33.
3See, eg, The Guardian, 15 January 1993, p 5.
came close on the heels of another major oil pollu-
tion disaster off northern Spain 4 and was closely
followed by a serious, pollution-causing collision off
Sumatra .5
The Braer incident, in particular, aroused a great
deal of public concern, especially in the U K and
Western Europe. The UK, as coastal State, and
Liberia, as Flag State, held the normal inquiries
concerning the causes of her loss. 6 Unusually,
4The 19 year old, laden 114 000 dwt oil tanker, Aegean Sea,
stranded and caught fire during an unsuccessful attempt to enter
the port of La Corufia on the night of 3 December 1992.
55-60 000 tonnes of crude oil were lost, US Coast Guard, Oil
Pollution Act of 1990 News Update, No 13, 15 December 1992,
p5.
5The laden 250 000 dwt Danish tanker, Maersk Navigator, col-
lided with an empty Japanese tanker near the Western entrance
to the Straits of Malacca on 21 January 1993, ENDS Report No
216, January 1993, p 15.
6UK Maritime Accident Investigation Bureau, Report of the Chief
Inspector of Marine Accidents into the Engine Failure and
Subsequent Grounding of the Motor Tanker Braer at Garth's
Ness, Shetland on 5 January 1993; Liberian Bureau of Maritime
Affairs, Report of the Investigation into the Matter of the Loss by
Grounding of the Motor Tanker Braer on the South Coast of
Shetland Island, 5 January 1993.

453
A European lawyer's view of the Government response to the Donaldson Report: G Plant
however, the U K Department of Transport (DOT)
also set up a more far-reaching Inquiry with very
broad terms of reference; these were: "To advise
whether further measures are appropriate and feasi-
ble to protect the U K coastline from pollution from
merchant shipping. Due consideration should be
given to the international and economic aspects of
any action". It is the Report of this Inquiry and the
Government's response to it, against the back-
ground of significant developments in the E u r o p e a n
Community (EC), that are examined in this article.
Lord Donaldson of Lymington, Master of the
Rolls from 1982 to 1992, was appointed to head the
Inquiry. He was assisted by two technical Assessors:
Professor Alisdair Mclntyre, Emeritus Professor of
Fisheries and Oceanography at Aberdeen Univer-
sity; and John Rendle CBE, formerly with Shell
Tankers (UK). They took evidence from a host of
organisations" and issued their final Report, 'Safer
Ships, Cleaner Seas', 8 (the 'Report') on 17 May
1994. Meanwhile they made only one interim
recommendation, 9 subsequently accepted by the
Government, m that the U K should ratify the 1989
Salvage Convention ~l and the 1992 Protocols to the
1969 Civil Liability Convention 12 and the 1971 Fund
Convention 13 as soon as possible. They also re-
quested the G o v e r n m e n t to conduct a study of traffic
patterns in the Fair Isle Channel to aid their
inquiries, 14 which it did.
The Report is an impressive and comprehensive
document running to 522 pages, divided into 23
chapters, and making 103 very full Recommenda-
tions, addressed essentially to the UK Government,
but also through it to other members of the maritime
community, including the IMO, and to the public. It
is primarily a document about protection of the
UK's coast from waterborne pollution from mer-
chant ships.~5 Nevertheless, it accepts the prevalent
view that the problem of ship-source pollution is a
7The author submitted evidence to it on international legal
matters on the first day for the taking of evidence, 20 April 1993,
as part of a team acting for the Advisory Committee on Pollution
of the Sea (ACOPS). See now Plant, 'Legal Environmental
Restraints on Navigation post-Braer', in Oil and Gas Law and
Taxation Review, Vols 9-10, 1992-93, pp 245-68.
8Cm 2560.
9In a letter dated 10 June 1993, reproduced in Appendix P to the
Report.
mlt became Party to these instruments on 29 September 1994, in
a joint ceremony with France and Germany: see Government
Response, p 48.
l i T h e 1989 International Convention on Maritime Salvage, IMO
Doc. LEG/CONF.7/27, 2 May 1989.
12The 1969 International Convention on Civil Liability for Oil
Pollution Damage, UKTS 106, 1975, Cmnd. 6183.
13The 1971 Convention on the Establishment of an International
Fund for Compensation for Oil Pollution Damage, UKTS 95,
1978, Cmnd. 7383.
~4Letter dated 27 May 1993, reproduced in Appendix O.
~51ncluding private yachts. Airborne pollution from ships and
pollution from warships, fleet auxiliaries and other ships used on
government non-commercial service are not considered.
454
global one, properly regulated at the international
level, with standards promulgated largely through
the IMO and, ideally, enforced by Flag States; it also
takes the realistic view that Flag State jurisdiction
alone does not work, and that greater reliance needs
to be placed on port (and coastal) State enforcement
jurisdiction. 16
The first paragraph of the 'Overview' to the
Report recognises that, "whilst much is already
being done, there is a pressing need for the United
Kingdom to take new initiatives internationally,
regionally and nationally". It goes on to say that
passing traffic is as great a problem as traffic des-
tined for U K ports, so that the measures which it
recommends "need, in the main, to be adopted in
cooperation with our regional neighbours and pre-
ferably on a world-wide basis", while reserving the
option of unilateral action where appropriate. t 7 In
addition, the Report "found that pollution control
and safety are very closely linked, because the best
way to maintain safety and prevent pollution is to
preserve the integrity of the ship. Much of [it] is thus
as relevant to safety as to pollution". 18
The UK Government's initial response
The U K G o v e r n m e n t took the Report very seriously
from the beginning. It stated that it supported its
broad thrust~20 and took immediate steps to imple-
ment some of the Recommendations, 21 initiated
studies in respect of others 22 and promised a full
1sit should be borne in mind, however, that, at the end of the day,
only a Flag State can ensure comprehensive survey, inspection
and control: Plant, op cit Ref 7, p 253.
17Overview, para. 6. Pursuing this theme, the Report itself
continues: "it is essential that nothing is done to conflict with IMO
or any of the International Conventions and agreements. Never-
theless, the fact remains that international organisations, includ-
ing IMO, normally work through consensus. While this has great
merit when a unified approach towards problems is agreed and
carried out, finding a consensus can lead to frustrating delays. A
balance is sometimes needed between consensus and speed,
and there may sometimes be good reasons for a single country or
group of countries to move faster than the remainder of IMO":
para. 2.11; see also para. 5.7.
18Report, para. 1.11.
~gSee the statement by the Rt Hon. John McGregor, Secretary of
State for Transport, H.C. Deb., 17 May 1994, at cols 675-677.
2°~bid, col. 675, and Government Response, p 1.
21For example since June 1994, it has published, in accordance
with Recommendation 41, details of foreign flag vessels detained
at UK ports (Government Response, pp 1 and 24 and statement
by John McGregor, ibid, cols 675-676); two emergency tugs
have been stationed in the Dover Strait and the Minch for a trial
period, pursuant to Recommendation 85(m) on salvage provision
(ibid, pp 1 and 51-52); and legislation (the Merchant Shipping
(Salvage and Pollution) Act 1994, II Eliz. 33, C. 28) was put in
place to permit the UK to become Party to the treaty instruments
referred to in Refs 11-13, op cir.
22A study on Recommendation 85, on enhanced salvage provi-
sion, being conducted by the Marine Safety Agency, concen-
trates on the Dover Strait, Western Approaches and NW Scot-
land areas and covers all aspects of the Report's ideas on
 A European lawyer's view of the Government response to the Donaldson Report: G Plant
response as soon as possible. The G o v e r n m e n t Res-
ponse of February 1995 addresses each Recom-
mendation in turn and, while it rejects some (re-
latively unimportant ones) e3 and is still considering
and consulting on others 24 (awaiting the results of
studies into the more radical and complex among
them), 25 it accepts the vast majority either in full or
in principle. It also describes the steps that Govern-
ment is taking in cooperation with its international
partners to implement them, claiming the taking of
leadership and the making of 'significant headway'
at the international level. 26 Finally, it describes the
consultations the G o v e r n m e n t has had with industry
and emphasises that it "will consider unilateral ac-
tion if that is the only effective, or timely, way
forward". 27
franchising, including costs and benefits: see Government Re-
sponse Appendix A. The Government did not take the opportunity
to act upon Recommendation 27, on a new UK waste reception
system, when faced with two amendments to the Merchant
Shipping (Salvage and Pollution) Bill; this would substantially
have given effect to them, by placing a statutory obligation, to be
policed by the DoT, on port and terminal operators to ensure the
provision of adequate facilities, and by subsuming charges
therefor into general port dues. In answer to Lord Clinton-Davis,
Labour's Transport Spokesman in the Lords, the Government
pleaded the need for further study, thought and consultation:
ENDS Report No 234, July 1994, p 30. Separate studies are
being conducted by the Marine Safety Agency and consultants
WRc, "which will form the basis for consultation with interested
parties to establish the best way of dealing with the Inquiry's
proposals and meeting the Government's aims"; Government
Response, p 18. Other research projects concern contaminated
ballast water (ibid, pp 18-19), and anti-fouling paints (TBTs), ibid,
p19.
23The Government view is as follows in respect of the below-
mentioned Recommendations: 9(a)(i) and (b): ports should not
be told, but should be free to use their commercial judgement in
deciding how to create proposed port dues differentials designed
to favour segregated ballast oil tankers (as to the IMO guidance
and EC measures on which see infra Ref 39, para. (d)); 36: there
is no need for a statutory obligation to ensure that UK harbour
authorities report ship arrivals and departures for port State
control purposes, as the existing voluntary system operates
effectively; 43: there is no case for a special port State inspection
regime for ships engaged primarily in UK waters over and above
the ordinary arrangements for vessels calling at UK ports; 60:
ships' routeing measures cannot be enforced through port State
inspection, if this involves requirements of self-targeting, upon
entry to a port, backed up with a ban on loading or unloading in
port in the event of non-compliance with such measures (as to
which see further infra text at Refs 56-61), and international
agreement to this would not be forthcoming in any event; 72(d) (in
part): it would be unhelpful, at this stage, to seek international
agreement to permit requests to ships participating in ship
reporting systems to explain as a matter of routine, as opposed to
in exceptional circumstances, why they chose a particular route;
99: see text infra; and 103(c) (in part): the UK Marine Pollution
Control Unit is too small to envisage exchanges of staff with, as
opposed to secondments from, harbour authorities and oil com-
panies.
24See infra, text at Refs 63, 83, 101, 117, 128, 137, 148, 151,174
and 208; also Refs 211 and 212.
2SOp cit Ref 22.
2~Government Response, p 1. Indeed, the number of recent
initiatives taken by the UK in relevant international fora is
impressive: see infra generally, and esp. Refs 211-213.
271bid, p 1.
It emphasises, moreover, that the G o v e r n m e n t
Response is merely a 'snapshot' of the Govern-
ment's progress to date in responding to the Report
and is not the end of the story; while refusing to go
as far as Recommendation 99 (that it should make
an annual report to Parliament on the implementa-
tion of the Report), it accepts the "principle that
interested parties should be kept in touch with
progress" in its implementation. 2g
Other UK and European political developments
The Inquiry and the Government's response to it
have not occurred in a political vacuum. Indeed,
such was the political pressure for action in the U K
and Western E u r o p e generally in January and
February 1993, that the UK Government, following
consultations with tanker organisations, announced
the application of "interim measures and recom-
mendations that could be put in place for tankers in
United Kingdom waters to protect sensitive areas
from the risk of accidental pollution' .29 This was
followed by submission to and adoption by the IMO,
in June 1993, of a number of voluntary ships'
routeing and ship reporting measures around the
U K coast, 3° which came into effect in November
1994. In July 1994, moreover, the Merchant Ship-
ping (Salvage and Pollution) Act 31 was passed, and
certain of its provisions were brought into force from
28 July 1994 onwards. 32 This provides, inter alia,
strict liability for oil pollution in U K waters to cover
spills of persistent oil from all ships and not merely
oil tankers covered by the CLC and Fund Conven-
tions (Section 6(1)).
The Inquiry and G o v e r n m e n t have also had to
bear in mind, and to comment upon, developments
at the level of the European Community. All of the
major E C institutions have been very active in the
marine safety and environmental protection field
since D e c e m b e r 1992.
The European Parliament quickly proposed a
number of measures restrictive of tanker traffic. 33 In
281bid, p 2.
29UK Government Notice, dated 11 January 1993, followed by
the publication of the 'Voluntary Interim Code for Ships Carrying
Oil or Other Hazardous Cargoes in Bulk in United Kingdom
Waters', IMO Doc. MSC 62/23/2/Add. 1, 30 March 1993.
3°See now IMO Res. A.768 (18), 4 November 1993.
310p cit Ref 21.
32The Merchant Shipping (Salvage and Pollution) Act 1994
(Commencement No 1) Order 1994, SI, 1994/1988.
a3Res. P.E. 163.454 of 17 December 1992 (La Corufia), B3-0242
and 0257/93 of 11 February 1993 (Maersk Navigator) and
B3-0047, 0048, 0054, 0067, 0076, 0085 and 0095/93 of 21
January 1993 (Shetland Islands). The latter, inter alia, called on
the EC Commission "to bring forward a proposal for the prohibi-
tion of shipments of dangerous cargo through the waters of
environmentally sensitive areas of the Community (including
Shetland) and through routes deemed unsafe" and on "all
responsible authorities in the Community" to, inter alia, set "a
date for banning oil-tankers which do not have a double hull from
455
A European lawyer's view of the Government response to the Donaldson Report: G Plant
January 1993, the Council of Ministers prepared a
set of Conclusions, which urged the consideration of
various actions by the Commission and Member
State Governments. 34 In pursuance of these, the
following month the Commission finalised a Com-
munication on A C o m m o n P o l i c y o n S a f e Seas. 35
This common policy was approved by the Environ-
ment Council, with some amendments, in June
1993, 36 and by the Parliament on 9 March 1994.
Under this, the Commission and Member State
Governments have been engaged in conducting and
commissioning further studies; 37 in particular the
Council invited M e m b e r States to determine
[Marine] Environmentally Sensitive Areas (MESAs)
on the basis of specific criteria (since drafted by the
Commission's Services and published on 15 July
1993) for the purpose of "requir[ing] adequate stan-
dards for ships sailing through environmentally
sensitive areas". In addition, the Commission has
launched a major legislative programme, which is
having a significant impact on the shipping safety
and environmental protection policies of many non-
Member, as well as Member, States, in addition to
the shipping and related industries. 38 The Report
lists the existing and proposed measures, as of May
1994, 39 and discusses each of them in turn; it also
territorial waters of the Member States", require "obligatory pilot
guidance when routes pass near the coast" and introduce "radar
vessel control in particularly hazardous areas", paras 5 and 7.
34Conclusions of the extraordinary Transport/Environment Coun-
cil on 'Maritime Safety and Pollution Prevention in the Commun-
ity' of 25 January 1993, Bull. EC 1/2-1993, point 1.2.103. Further
such joint Council meetings took place in March 1993 (as to
which see Donaldson Report, para. 5.74) and March 1994: see
'Conclusions' dated 24 March 1994.
35COM (93) 66 final of 24 February 1993.
36Council Res. of 8 June 1993 on 'A Common Policy on Safer
Seas' (93/C 271/01), OJ C.271, 7 October 1993, p 1 and
Conclusions of 29 June 1993, Bull. EC 6-1993, point 1.2.116.
3ZCouncil Conclusions of 29 June 1993, ibid. See also the
Commission Services' Progress Report on the Common Policy
on Safe Seas, EC Doc. SEC(94) 503, 22 March 1994, pp 4-5.
The EC's very significant so-called 'Green Paper on Remedying
Environmental Damage' (COM(92) 278) (which discusses the
potential application of civil liability and joint compensation
scheme approaches to implementing the 'polluter pays' principle)
also has potential relevance for the marine environment of the
Community; as to its current status see 20 Environmental Liabfity
Report, April 1995, pp 10-11.
38R Celli (in 'The European Community Approach', Safety at Sea
International, June 1994, pp 25, 27) lists: the enhancement of the
safety policy of the International Association of Classification
Societies (IACS); the promotion, with much success, by the oil
and chemical industries of their own programmes for the survey
and inspection of ships as a precondition to their using them in
trade (such as SRE - Ship Inspection Reports - and DI -
Chemical Distribution Institute - standards); and "the adoption by
some of the marine underwriters and P&I Clubs of a more severe
policy towards unseaworthy vessels".
39At para. 5.70. This legislation is centred upon the stricter
enforcement of existing IMO standards, in EC waters or in
relation to vessels registered in Member States, but also goes
further "to include other matters such as the safety of ships not
within the IMO (sic) standards of equipment and the training of
crews": Celli, ibid, p 25. Finalised legislation now includes: (a) the
456
Council Directive on Minimum Requirements for Vessels Bound
for or Leaving Community Ports and Carrying Dangerous Pollut-
ing Goods, (the Pre-Entry Reporting Directive), 93/75/EEC, 13
September 1993, OJ L.247, p 19. This requires the operator of a
merchant ship, before departing a third port bound for an EC port,
to report to the designated authority of the EC Port State: her
name and call sign; her nationality; her length and draught; her
port of destination and estimated time of departure for and arrival
at it; her intended route; and full details of dangerous or polluting
cargo on board, as well as confirmation of the presence of
documentation on board giving details of them and their location.
Merchant ships departing an EC port are also required to report
these matters to the designated authority of that State. It also
includes provisions that do not appear to be limited to ships
calling at EC ports, on notification to coastal (Member) States in
the event of a pollution-threatening incident (Article 6) and the
broadcasting "within the relevant areas" of such notifications and
"information with regard to any vessel which poses a threat to
other shipping" (Article 9). In force from 15 September 1995, this
replaces Directive 79/116 (OJ (1979) L.33), as amended by
Directive 79/1034 (OJ (1979) L.315), concering minimum stan-
dards for certain tankers calling at EC ports. (b) the Council
Directive on Common Rules and Standards for Ship Inspection
and Survey Organisations, 94/57/EEC (Classification Societies
Directive), OJ (1994) L.139, 12 December 1994, to come into
force on 31 December 1995. This sets quantitative as well as
qualitative criteria for the continued recognition by Member
States of classification societies' certificates and requires vessels
with non-recognised certificates to be inspected first in EC ports
and appropriate action to be taken against such vessels found to
be sub-standard; (c) the Council Directive on the Minimum Level
of Training for Maritime Occupations (Training Directive), 94/58/
EC, 22 November 1994, OJ (1994) L.139, 12 December 1994, to
come into force on 31 December 1995. This requires EC
seafarers to have certificates of aptitude issued by a Member
State, in accordance with IMO requirements, and a common
standard for the recognition by Member States of third Flag State
certificates. It also refers to a common language among seafar-
ers on EC vessels; (d) the Council Regulation on the Implementa-
tion of IMO Resolution A.747 (18) on the Application of Tonnage
Measurements of Ballast Spaces in Segregated Ballast Oil
Tankers (SBTs Regulation), 2978/94, 22 November 1994, OJ
(1994) L.139, 12 December 1994, to come into force on 1
January 1996. This will remove disincentives to the operation
(involving calls at EC ports) of SBT oil tankers, which have a
more environmentally friendly but consequentially larger con-
struction than other tankers and so are normally liable to pay
heavier harbour and pilotage fees, by making legally binding in
those ports IMO standards applying reduction schemes for levies
charged on them; and the Council Directive Concerning the
Enforcement, in Respect of Shipping Using Community Ports and
Sailing in Waters under the Jurisdiction of Member States, or
International Standards for Ship Safety, Pollution Prevention and
Shipboard Living and Working Conditions (Port State Control
Directive) which is largely self-explanatory and will enter into
force on 1 July 1996. Celli (ibid, p26) suggests this: "The
importance of this . . . should not be underestimated and its
objectives should be closely considered. The Commission
attaches particular importance to the elimination of substandard
ships as a preventive action for achieving safety at sea [and so
environmental protection] and it therefore considers the inspec-
tion of ships by the port state as the central pillar of Community
policy regarding the convergent implementation and uniform
enforcement of IMO and ILO . . . provisions on all vessels,
regardless of flag, operating in Community waters."
The "lack of a common approach to inspection and the lack of
uniformity in inspection criteria", he continues, "have enabled
substandard ships to escape the net of controls [under the Paris
MoU] by making selective use of certain ports". The Directive is
designed to remedy this by requiring, inter alios, the putting in
place of several different levels of inspection, including enhanced
measures in respect of bulk carriers, passenger ships and (older)
 A European lawyer's view of the Government response to the Donaldson Report: G Plant
suggests the then probable contents of the second
tranche of legislation to follow. 4° To the extent of
the scope of this legislative programme, the U K
Government's response to many of the Recom-
mendations has to bear in mind what is practically
achievable in Brussels. 41
The principal recommendations: the overview
The Overview makes it clear that the Inquiry's
Recommendations can be divided into two sets: (i)
those concerning deterrence and detection of wrong-
doing; and (ii) those involving the dissemination of
information to ships' masters planning voyages.
(i) Deterring and detecting w r o n g d o i n g
The philosophy behind the first set of Recom-
mendations is stated in paragraph 5, as follows:
It is always idle to seek to change human nature. The
answer to the problem lies in working with it and
seeking to provide incentives and encouragement for
the adoption of the highest standards at every level,
coupled with disincentives, including harsh sanctions
for those who persistently ignore their responsibilities
towards the environment.
The Report, with very few exceptions, 42 found
no problem with the level of international stan-
dards for pollution prevention and control,
which, it notes, 43 are continuously being revised
and tightened up. 44 Its concern is with their
enforcement, the encouragement of compliance
oil tankers within five years of phasing out under MARPOL 73/78
requirements, all of which have displayed particular safety prob-
lems in recent years. In addition, it requires Member States to
ensure that any detected deficiencies are rectified and provides a
harmonised list of deficiencies involving danger to safety, health
or the environment that necessitate detention of the ship. A ship
refusing to proceed to a repair yard to remedy deficiencies is
excluded from EC ports until repairs are completed. One piece of
proposed legislation is not yet finalised: the Council Directive
concerning the setting up of a European Vessel Reporting
System in the Maritime Zones of Member States (EUROREP
Directive): see COM(93)647 final, OJ (1994) C.22, 17 December
1993; COM(94)220 final, OJ (1994) C.22; and OJ (1994) C.193,
16 July 1994.
4°At para. 5.73. In the event only two measures have been
passed to date: a Parliamentary Resolution on safety at sea
(B4-0236/94, 27 October 1994) and a Council Resolution on
ferry safety (of 22 November 1994). In addition, the Commission
has announced that it will put forward a proposal for mandatory
introduction of the IMO's International Safety Management (ISM)
Code for the Operation of Ships and Pollution Prevention (IMO
Res. A.741 (18), 4 November 1993) for certain vessels operating
in EC waters, by 1 July 1996: see Government Response,
pp 11-12. See also Progress Report, op cit Ref 37, p 2.
41See its responses to Recommendations 5, 9, 13, 18, 20, 21,32,
33, 41, 44, 59, 68-70, 95-97, 102 and 103 and generally infra.
421t recommends, for example, that the discharge of a certain
additive to lubricating oil be prohibited or controlled to protect
seabird populations: Report, para. 9.30
43Overview, para. 3.
44See Report, para. 4.3.
and the necessary 'backchecks' to ensure both
that compliance occurs and that this has the
intended effect in practice. 45
The Overview places emphasis first on enhanc-
ing Flag State control, which the U K Govern-
ment welcomes. 46 The rather idealistic, long-
term solution that, it is suggested, 'may come'
'[i]deally' is that: "Flag States which failed to
live up to their internationally agreed obliga-
tions would face severe sanctions, including
withdrawal of recognition of their authority. ''47
The Government, indeed, has accepted this, 4s at
least to the extent of proposing a number of
possible amendments to the SOLAS Conven-
tion, 49 including suspension of mutual recog-
nition of certificates until compliance with IMO
standards by Flag States with poor records has
been established. 5°
But, sensibly, the Overview places emphasis
on the suggested short/medium term solution of
"cooperative self-defence by regional port and
coastal States". 51 The scheme in contemplation, 52
as the UK's "first line of defence", 53 is one of
port State inspection and enforcement enhanced
from its present status, notably under the 1982
Paris M e m o r a n d u m of Understanding on Port
State Jurisdiction (Pards MoU),54 as the equivalent
of 'road-side tests' to that of the UK's regular
M O T test for cars. 55 This should be combined
with ships targeting themselves for inspection,
and this in a manner designed to perpetuate this
self-targeting obligation with each European
port of call until the deficiencies in question are
remedied; 56 this is in preference to the existing
system, under the Paris MoU 57 and its equivalents
elsewhere, 5s of national quotas for inspection. 59
451bid, para 4.26.
46Government Response, p 3.
47Overview, para. 8.
48Government Response, p 3.
49"1"he1974 International Convention for the Safety of Life at Sea,
UKTS 46, 1980, Cmnd. 7874.
5°IMO Doc. FSI 3/INF.7, 25 November 1994.
51Overview, para 8.
52See Overview, paras 10-12, and Report, paras 11.40-49.
53Report, para. 11.5
S4Under which the port authorities of 15 European States cooper-
ate in targeting ships for inspection under the various safety and
environmental protection Convention regimes providing for port
State inspection.
55The Report appears to have gained a good deal of inspiration
from analogies with road traffic. See also, eg, para. 15.3.
5SShips would carry 'Paris MoU log-books' on board to facilitate
this; ibid, para. 11.40; Recommendation 34. This system should
be supplemented by occasional, surprise saturation inspections
of all ships in a port, ibid, para. 11.66 and Recommendation 40.
5713utsee now ibid, para. 11.19, concerning the recent agreement
to target "ships of Flag States that have a poor safety record as
measured by their detention rate within the Paris MoU".
58Eg under the 1993 Vifia del Mar Agreement and the Memoran-
dum of Understanding on Port State Control in the Asia/Pacific
Region (Tokyo MoU): see ibid, para. 11.82; and IMO Doc. MSC
63/INF.4, 12 January 1994.
457
A European lawyer's view of the Governrnent response to the Donaldson Report: G Plant
Thirdly, "severe sanctions for sub-standard
ships" are recommended "involving obligatory
delays before they are allowed to load or dis-
charge or even a denial of that right".6° Finally,
self-targeting and sanctions are envisaged as
applying to all ships in the same ownership,
regardless of the condition of the individual
vessels. 6~
Given that the relevant Recommendations
represent a new approach to port State control,
and that their implementation could be difficult
and have disadvantages, such as for the competi-
tiveness of U K ports if implemented unilater-
ally, 62 the Government has decided to take further
time to consider them. ('3
The proposed scheme seems ingenious, but
there is one objection in principle that might be
made. It is generally accepted, with few dissents,
that a State is free to deny or place conditions on
access to its ports by foreign vessels, except in
cases of distressJ '4 On the other hand, it is a
principle strongly upheld in the 1982 Law of the
Sea Convention (LOSC) 65 that, even where the
port State inspection of a vessel indicates a
violation of applicable environmental protection
standards, the vessel and her crew are to be
released promptly after inspection, subject to
reasonable conditions, such as the posting of
financial security; an a c c e l e r a t e d dispute-
settlement procedure is provided in order to
reinforce this, and so guards against abusive
restrictions on vessels' freedom to exercise their
international navigation rights. 66 The port State
is only entitled to refuse release of the vessel (or
to make release conditional on her proceeding
to the nearest appropriate repair yard), where
her release "would present an unreasonable
threat of damage to the marine environment ''('7
or it has ascertained that she is in violation of
applicable international rules and standards re-
lating to seaworthiness. 68 The object of these
sgset in terms of a percentage target (at present 25%) of all ships
calling at its ports, these are arguably less of a deterrent to
sub-standard ships than the new proposal, as well as problematic
for 'last port of call' countries, like Finland: see ibid, para.
11.58-9.
6°Overview, para. 12. Recommendation 42 puts it less specifical-
ly: "The UK Government, with its Paris MoU partners, should take
powers to allow a ban or a delay on the discharging or loading of
cargo to be imposed on [certain] ships".
61Overview, ibid and Recommendations 34(b) (vi) and 42.
62Government Response, pp 20 and 22 and statement by John
McGregor, op cit Ref 19, col. 677.
631bid, p 22 et seq. They are being considered in conjunction with
Paris MoU partners,
S4See R Churchill and A V Lowe, The Law of the Sea, Manches-
ter UP, 1985, pp 46-48.
65Article 226 LOSC.
66Article 292.
STArticle 226(1 )(c).
68Article 219.
458
two exceptions is restricted to permitting neces-
sary repairs to be made, and the vessel must be
released immediately they are made. Bearing
this in mind, it is perhaps difficult to characterise
sanctions involving obligatory delays in loading
or discharging as such exercises in 'detention'
and 'release' of a vessel. It is also difficult to
foresee any realistic possibility that the LOSC
provisions might be amended to permit such
powers to be enjoyed by the port State. In
addition, any obligatory delay in discharging will
simply serve to delay the opportunity for the
making of most repairs and so, in a sense,
contradict the purposes of the two exceptions
and of the port State in imposing sanctions in the
first place/'9
There is also a practical difficulty with the
suggestion that self-targeting and sanctions
should apply to all ships in the same ownership
or management. The average tanker fleet is now
a mere 1.7 vessels, TM precisely because one-ship
companies obviate any possibility of action
being taken against sister ships; this recom-
mendation could only reinforce that trend to-
wards fragmentation and so would not, in the
author's opinion, necessarily raise standards.
Additional principal recommendations to de-
ter and detect wrongdoing include: improved
dissemination of ship/fleet standards to charter-
ers and underwriters, so that they can place
financial pressures on sub-standard vessels likely
to be discriminated against under the above-
m e n t i o n e d scheme; TM painting identification
numbers on the decks and sides of ships in large
characters; 7= and improved offshore surveil-
lance. 73 There appears to be nothing wrong with
any of these in principle; the freedom of navi-
gation (still less other international rights of
navigation) should not be seen as a freedom to
navigate in complete anonymity regardless of
the potential environmental threat that some
ships _pose. TM The G o v e r n m e n t has accepted
them,'-" while pointing out the need for inter-
national agreement in some cases and surround-
ing difficulties, including in obtaining IMO
G9Finally, it might be argued, though not strongly given parallels
with SOLAS and MARPOL inspections, that none of this can be
convincingly represented as a 'condition' for entry to the port, as
the 'condition' is placed on the vessel only after it has arrived in
port in good faith to load or discharge and has been found
wanting after inspection by the port authorities. All of this is quite
apart from the demurrage and other private law implications of
the delay in loading or discharge.
7°Shell, Prevention of Oil Spills from Tankers, London, 1993, p 1.
71Overview, para. 13. See also in particular Recommendations
37-39 and 41.
721bid, para. 14, and Recommendation 66.
731bid, para. 15, and Recommendations 73-76. See also infra
text at Refs 189-198.
74This is most forcefully recognised by the Report in para. 15.26.
75Government Response, pp 23-24, 38 and 44-46.
 A European lawyer's view of the Government response to the Donaldson Report: G Plant
agreement to a renewed effort, the first having
failed, to require the painting of identification
numbers on ships. 7(~
(ii) Dissemination o f information to ship masters
planning voyages
The emphasis in this set of principal recom-
mendations described in the Overview is upon
enhancing the master's ability to make informed
decisions about his environmental responsibili-
ties.
The principal measures suggested are: (a) the
provision to ships making voyages to and from
the U K of a clear, simply expressed Seaway
Code designed to remind them, in one user-
friendly volume, of the practical steps which
they can take to reduce the risk of pollution and
of the relevant regulations, 77 which the Govern-
ment has accepted in principle; 7~ (b) the restora-
tion of regional salvage capabilities, 79 which is
also still under consideration; s° (c) the designa-
tion of Marine Environmentally High Risk
Areas ( M E H R A s ) in limited locations ~1 where
there is both a significant concentration of ship-
ping and a high risk of environmental damage,
which would be marked on Admiralty Charts
and in the Seaway Code as a means of informing
masters of the risk of exceptional damage in the
event of his ship grounding, 82 which is still under
G o v e r n m e n t consideration; 83 and (d) the streng-
thening of the existing duty to report accidents
on board s h i p s Y combined with the showing by
coastal States of a ~greater readiness to intervene
where necessary, 8 which the G o v e r n m e n t has
largely accepted, x(,
The spirit of these recommendations is unim-
peachable in itself, but one can make the follow-
ing criticisms of the reasoning that led to the
latter two.
M E H R A s echo the emphasis in much of the
761bid, p 38.
77Overview, para. 16. See also the early part of Chapter 13 of the
Report and Recommendation 50.
ZSGovernment Response, p 29. A draft went out to consultation in
December 1994.
79Overview, para. 19, and Recommendation 85. See also Report
Chapter 20, esp. at paras 20.77-84.
8°Government Response, p 51. As to interim measures taken see
op cit Ref 21.
81That is covering no more than 10% of the UK coastline: Report
para. 14.125, The areas around Skomer Island, Pembrokeshire
and the Isles of Scilly are given as 'obvious' examples, paras
14.70 and 14.74.
82Overview, para. 17. See also Report, paras 14.119-125 and
Recommendation 59.
83Government Response, pp 33-34.
84Overview, para. 20, and Recommendation 71. See also Report,
paras 15.72-78.
8SOverview, para. 20, and Recommendations 87-89. See also
Report, paras 20.27-33.
86Government Response, pp 42 and 53-54.
post-Braer debate on the particular need to
protect the most environmentally sensitive sea
areas from ship-source pollution. Being mea-
sures proposed for the defence of sensitive
coastlines against such pollution, they are sens-
ibly conceived in terms of both environmental
sensitivity and the occurrence of significant ship
traffic. In an area where there is already a
confusing plethora of different types of 'special
area', ~7 however, and also a great deal of in-
formation already marked on charts, ~ it is diffi-
cult to see how a new, essentially voluntary,
system, reliant on masters' reactions to informa-
tion supplied to them, will add to the possibili-
ties of protection without making matters even
more confusing. Well-intentioned masters will,
indeed, react correctly to the information, in so
far as commercial pressures do not prevent them
from doing so, but those of sub-standard vessels
may not. The G o v e r n m e n t accepts the shipping
industry's view that to designate M E H R A s with-
out establishing the concept internationally
could cause confusion and undermine their
value and intends to see rationalisation between
the M E H R A and M E S A concepts in the EC
before acting more widely. 8~
But international debate is already centred
upon the development of another concept, Par-
ticularly Sensitive Sea Areas (PSSAs). If proper-
ly developed, this could come to comprehend all
the positive aspects of M E H R A s as well as to
grant to the relevant coastal State, under IMO
supervision, exceptional prescriptive and en-
forcement powers specifically designed to suit
the environmental needs of the sea area in
8~For example (i) MARPOL special areas; (ii) 'special areas'
under Article 211 (6) LOSC (which the Report says are 'potentially
significant', at para. 5.37); (iii) 'protected areas' covered by three
UNEP regional seas agreements, the 1982 Geneva Protocol
concerning Mediterranean Specially Protected Areas to the 1976
Barcelona Convention for the Protection of the Mediterranean
Sea against Pollution (New Directions in the Law of the Sea
(Iooseleaf) Doc. J.20); the 1985 Nairobi Protocol concerning
Protected Areas and Wild Fauna and Flora in the Eastern African
Region to the 1985 Convention for the Protection, Management
and Development of the Marine and Coastal Environment of the
Eastern African Region (P Sand, Marine Environmental Law in
the United Nations Environment Programme, London, 1988, p
171); and the 1990 Kingston Protocol concerning Specially
Protected Areas and Wildlife to the 1983 Cartagena Convention
for the Protection and Development of the Marine Environment of
the Wider Caribbean Region (W Burhenne (ed), International
Environmental Law: Multilateral Treaties, Berlin, 1974, 990:85);
(iv) World Heritage Sites under the 1972 UNESCO Convention
Concerning the Protection of the World Cultural and Natural
Heritage, Cmnd. 9424; (v) areas designated under the 1971
Convention on Wetlands of International Importance (Ramsar),
Cmnd. 6465; (vi) Particularly Sensitive Sea Areas, as to which
see text infra; and now (vii) EC 'MESAs', as to which see text op
cit Ref 37.
88See Government Response, p 34.
891bid
459
A European lawyer's view of the Government response to the Donaldson Report: G Plant
question, and so could help to ensure that
sub-standard vessels also take precautions. 9° Ex-
perts generally agree that the existing IMO
Guidelines on PSSAs 91 need to be improved,
and this is likely to involve their being tightened
up (so that the concept applies only to truly
environmentally sensitive areas) and the provi-
sion of a firmer legal base for them. Adopting a
national system of M E H R A s and working to-
wards their international acceptance would be
both a distraction from and less effective than
active participation in this international process
and the designation and adoption by the IMO of
PSSAs in appropriate sea areas adjacent to the
U K coast. Australia's experience with its Great
Barrier Reef Marine Park PSSA, the only one
established to date, appears to have been
positive. 92
The Overview argues, moreover, that M E H R A s are
necessary because "the average ship master neither
knows nor has the means of knowing, that the nature
of the shoreline is such that if his ship grounded, for
whatever reason, there could be risk of exceptional
damage" (so far so good) "which might expose his
owners and insurers to substantial liabilities". 93 It is
in the last clause that the reasoning partially breaks
down. A master might well be influenced to seek to
avoid contingent liabilities by the knowledge that he
is near a coast of particular economic value as an
area for tourism, fish farming or the like, but he is
hardly likely, given the limited possibilities for re-
covery of significant compensation for pure environ-
mental loss, 94 to inconvenience himself to a great
extent in this respect merely because the coastal area
is important as a natural environment.
Finally, the Report, while recommending the
strengthening of duties to report to the coastal State
any on-board faults that occur, does so from the
basis of an overestimation of the strength of existing
international legal obligations. It suggests that there
is a duty under M A R P O L to report an incident
causing or threatening pollution by oil or other
noxious or hazardous substances to the nearest coas-
tal State. 95 In fact M A R P O L does not specify the
9°See Plant Facilitating Commerce, Safety and Environmental
Protection: The International Law of Maritime Navigation, Man-
chester, 1995 forthcoming, Chapter 17, Section 2. See now also
the Report of the Third International Meeting of Legal Experts on
Particularly Sensitive Sea Areas, IMO Dec. MEPC 36/21/4, 4
August 1994.
911MO Res. A.720(17), 6 November 1991, Annex: 'Guidelines for
the Designation of Special Areas and the Identification of Particu-
larly Sensitive Sea Areas'.
92See, eg, G Kelleher and C Bleakley, 'Declaration of Particularly
Sensitive Areas', paper given at a Workshop on 'International
Cooperation in Protected Area Management' (on file with author).
93Para. 17.
94See Plant, op cit Ref 90, Chapter 11, Section 3.4.
95Report, para. 10.15. The non-binding, IMO Res. MEPC.22(21 )
does specify that State.
460
State to which the report must be made, Article 221
LOSC clarifies matters hardly at all, and it is only
the 1990 International Convention on Oil Pollution
Preparedness, Response and Cooperation, 96 which
is at present limited to oil and oily substances, only
entered into force on 13 May 1995 and has few
Parties to d a t e s that specifies the nearest coastal
State. 9s It is nevertheless encouraging to see that the
U K should shortly accede to the Convention. 99
The Overview and Report are also concerned with
financing its proposals and with value for money. 100
The Report generally favours applying the economic
principles of the 'polluter (or potential polluter)
pays' and the 'user pays', as far as possible, but
suggests some exceptions, such as in relation to port
waste reception facilities, the cost of which, it re-
commends, should be subsumed in general port
dues, so as to encourage masters to use a service
'they are already paying for'. 101 The Government is
considering this.
Other recommendations: the Report
The Report itself follows a different pattern. After
its introductory chapters, which deal, inter alia, with
questions of international law, it is structured
around four so-called 'lines of defence' against
pollution, 1°2 as follows:
(1) Construction, operation, maintenance and in-
spection (Chapters 6-12, Recommendations 1-
49);
(2) Navigation, routeing and shore-based surveill-
ance, together with insurance, compensation
and other indirect aspects (Chapters 13-19, Re-
commendations 50-84);
(3) Response to casualties (Chapter 20, Recom-
mendations 85-89); and
(4) Responses to unpreventable pollution (Chapter
21, Recommendations 90-94).
It is worth discussing each in turn. In addition, as far
as the introductory chapters are concerned, the most
important features are the following:
(a) The Report recommends that the U K extend its
jurisdiction (as port and coastal State) to the
maximum degree permissible under the relevant
Conventions and that the G o v e r n m e n t pass
enabling regulations, using port and coastal
State jurisdiction, in areas pertaining to "the
safety of navigation and regulation of maritime
traffic, conservation of living resources and the
96UKTS Misc. 38 (1994), Cm 2671.
9719 as of 22 May 1995.
98See further Plant, op cit Ref 90, Chapter 14, Section 3.3.3.
~Government Response, p 56.
1°°See Chapter 22 and Recommendations 95-98.
1°1Report, paras 9.63-65, and Recommendation 27(e).
~°ZReport, para. 1.25.
 A European lawyer's view o f the Government response to the Donaldson Report: G Plant
protection and preservation of the marine en-
vironment and the prevention, reduction and
control of pollution thereof", not covered by
specific Conventions. x°3 The Government had,
of course, already started to move in this direc-
tion with its regional partners, TM and is now
preparing secondary legislation under the Mer-
chant Shipping (Salvage and Pollution) Act 1994
to implement this recommendation. ~°5
(b) The Report also recommends the UK Govern-
ment to press the IMO to consider publishing
information on the faults found during port
State inspections on each Flag State's vessels in
order to shame those with poor records into
raising their standards. If this does not work, it
suggests, IMO Conventions requiring the pos-
session and carriage of certificates should be
amended to permit States Party to refuse to
recognise vessel certificates if the record of the
Flag State was held by the IMO, or the port
State without any dissent from the IMO, to
justify it. 106 The Government has accepted this
and introduced a paper for consideration in the
I M O s Flag S t a t e I m p l e m e n t a t i o n Sub-
Committee (FSI) pressing for action against Flag
States with poor records. 1o7
(1) Construction, operation, maintenance and
inspection
(a) Chapter 7 of the Report concerns improve-
ments in ship design, construction, maintenance,
equipment and reliability. It recommends in par-
ticular: (i) the mandatory carriage of survey
history files by vessels other than tankers, l°s and
the Government has accepted this in principle; 1°9
(ii) the inclusion of adequate quantitative as
well as qualitative criteria in IMO guidelines for
permissible delegation of work by governments
to classification societies. 1~° The Government
agrees that the EC Commission's approach in
this respect, in its Port State Control Direc-
tive, 1H is preferable to the present IMO guide-
lines in Resolution A.747 (18) and will push for
1°3Report, para. 5.89; Recommendation 102.
~°"Especially through the North Sea Ministerial Conferences
process; see, eg, the Paris Declaration on the Coordinated
Extension of Jurisdiction in the North Sea, 22 September 1992,
23 LOS Bulletin, 1993, p 65.
~°5Government Response, p 62.
l°6Para. 6.28 and Recommendation 1. In para. 11.26, moreover,
amendments to IMO Conventions are also suggested, if the
granting of certificates becomes a practice of deceit through the
obtention of fraudulent certificates.
1°71MO Doc. FSI 3/9; see also Government Response, pp 3-4.
~°SPara. 7.24; Recommendation 4(d). Under MARPOL amend-
ments operative since 1 July 1995, survey history files already
have to be carried by oil tankers over 5 years old.
~°gGovernment Response, p 5.
l~°Para. 7.36-37; see also Recommendation 5.
1110p cit Ref 39, para. (e).
it to be adopted in the IMO's FSI; 112 (iii)
the rejection of mandatory age limits for ships, 113
to which the Government has agreed; 114 (iv) the
subjection of vital shipboard systems to strenu-
ous engineering analysis with the emphasis on
safety, in preference to across-the-board dupli-
cation of systems; 115 and (v) the fitting of hull
stress monitoring systems and voyage data
recorders to certain categories of vessel, 11~
which the Government has accepted in prin-
ciple, subject to the collection of further useful
data over the next few years. 117 All of this is
highly desirable and should not entail excessive
cost.
(b) Chapter 8 of the Report concerns the en-
hancement of ship operating and crewing. It
recommends in particular that: (i) the 1978
Convention on Standards of Training, Certifica-
tion and Watchkeeping for Seafarers (STCW) ~18
be amended and measures taken to ensure that
its implementation is improved; H9 (ii) language
provisions should be included in these amend-
ments, there needing to be sufficient overlaps of
language between the officers and crew to en-
sure that orders can be got through and under-
stood, and, indeed, the formal adoption of
English as the international language of the
sea; 12° (iii) shore management should imple-
ment the ISM Code, in advance of its becoming
mandatory in 1998, and trade organisations, like
the International Chamber of Shipping and IN-
TERTANKO, should operate quality manage-
m e n t s y s t e m s f o l l o w i n g the ISO 9002
standard; lal (iv) the industry should consider
the reasonableness of demands placed upon
masters. 122 "[M]asters should not", for example,
"have their freedom constrained by, say, an
owner insisting that a particular route or speed
should be maintained despite bad weather"; 123
and (v) the DoT should be cautious before
introducing its new concept of One Man Bridge
Operations at Night. ~24 The Government has
accepted all of these Recommendations, 12s
112Government Response, pp 7-8.
l~3para. 7.69; Recommendation 11.
~14Government Response, p 8.
~15para. 7.71.
~16Para. 7.64 and Recommendation 13. This would help in the
planning of vessel maintenance, help the master to navigate so
as to minimise hull stresses and 'concentrate the minds' of those
on the bridge whose actions were being recorded.
~TGovernment Response, pp 9-10.
118UKTS 50 (1984), Cmnd. 9266.
119Recommendation 19.
~2°Paras 8.49-51 ; Recommendation 20.
~a~Para. 8.10--11; Recommendation 18(a).
122Recommendation 18(b)
123para. 8.16.
124para. 8.36; Recommendation 18(e).
~25Government Response, pp 11-15. See also infra Ref 212,
para. (i).
461
A European lawyer's view of the Government response to the Donaldson Report: G Plant
albeit only in principle where international
agreement is requisite, pointing out in particular
that a diplomatic conference to adopt revisions
of STCW was already scheduled for Summer
1995, which, in the event, adopted substantial
amendments to STCW.
All this again is desirable, but, in so far as it is
based on voluntary compliance by industry, as
opposed to effectively implemented interna-
tionally agreed standards, it is hard to see how it
will in practice capture the sub-standard ship.
In addition, this chapter suggests that the
G o v e r n m e n t take powers to tackle a specific
local problem, 'parking' in UK territorial waters
by vessels not engaged in innocent passage and
ship-to-ship transfers there, beyond prescribed
harbour limits (and so the scope of present
controlling powers), of potentially polluting car-
goes and bunker fuel. TM The G o v e r n m e n t has
in response drafted amendments to the (Trans-
fer Records) Regulations 127 so as to prohibit
trans-shipments within 9 miles of the shoreline
and to define a single trans-shipment area in
Lyme Bay; these have been sent out for con-
sultation. 128
(c) Chapter 9 of the Report makes the following
recommendations about non-accidental pollut-
ing discharges: (i) more stringent and effective
controls should be adopted on discharges of
noxious liquid wastes u n d e r A n n e x II of
M A R P O L ; r29 (ii) the North and Irish Seas and
English Channel should be considered for even-
tual designation as M A R P O L (Annex I) special
areas for oily wastes and adequate reception
facilities put in place by North Sea States, as a
necessary preliminary to this; 13° and (iii) disin-
centives to using port reception facilities should
be r e m o v e d 131 including, through placing a
statutory obligation, to be policed by the DoT,
on port and terminal operators to ensure the
provision of adequate facilities, 132 and through
the subsuming of charges into general port
~2eParas 5.29 and 8.81. See also: Recommendation 102, paras
14.85 and Recommendation 64 (on Lyme Bay); and Chapter 17
and Recommendation 77 (on fish factory ships operating in UK
waters).
127To be made under S.35(1) Merchant Shipping Act 1988.
128See Government Response, p 37.
~29Recommendation 25.
~3°Para. 9.9; Recommendation 22.
~3~Paras. 9.41-65; Recommendation 27. In particular floating
facilities which do not interfere with loading or discharge sche-
dules should be used where possible; customs and excise
charges on discharged waste should be consistently applied
(indeed, the implication appears to be that they should not be
charged at all); and high charges for the landing of small amounts
of waste ought to be avoided. Otherwise, it is often easier for the
master to take the view that it is more convenient and profitable to
throw waste over the side at sea, there being little danger of
detection.
132para. 9.59; Recommendation 27(a).
462
dues.L33 An interesting point raised is the fre-
quent imposition by land-based disposers of
ship-generated garbage of onerous conditions
concerning its sorting into different categories
before they will take delivery. 134 As the dispos-
ers are seeking to comply with statutory obliga-
tions drafted with land-based, point-source in-
dustrial concerns in mind, these requirements
may be too sophisticated for ships, so that
masters may prefer the easy solution of throwing
the garbage over the side at sea. This personifies
this country's past failings in integrating its
environmental protection regimes across media
and across jurisdictional boundaries, and in par-
ticular between land- and river-based controls
on the one hand and those in coastal zones on
the other. 135
The G o v e r n m e n t accepts the first of these
recommendations, 136 but thinks the second and
third need further study, thought and consulta-
tion before any action is taken. 137 - It pointed out
that M A R P O L special area status was already
under discussion among North Sea States, 138
and that one concern is that designation would
simply transfer discharges to the outer bound-
aries of the area designated.13'~ If, moreover, it
put in place the reception facility scheme sug-
gested, it would do so in the teeth of strong
opposition from port and terminal operators,
who argue that a similar scheme in Germany has
not encouraged higher levels of use of such
facilities. 140
(d) Chapter 10 of the Report is devoted to
hazardous and noxious substances, in relation to
which the Inquiry was satisfied that existing
standards are adequate, although it did recom-
mend the development of a workable system for
the electronic tagging of containers containing
such substances, in order to allow their recovery
when they are lost at sea. 141 The Government
has accepted this in principle, and agreed to
laaPara. 9.63-65. As has been explained, supra text at No 101,
this is to encourage masters to use a service they have 'already
paid for'.
134See now Recommendation 27(a)(iii).
135See G Plant and Lisa Wilder, 'What Environmental Institutions
Does the UK Need?' Basic Document of the LSE Centre for
Environmental Law and Policy Conference of that name, 13 July
1992, at 11, 17 and 20 (to appear in Plant and Wilder (eds) The
New Environment Agency: What Environmental Institutions Do
We Need? Graham and Trotman, 1996 forthcoming) (on file with
author).
136Government Response, p 17. Amendments to Annex II are
being considered in the IMO.
~371bid, pp 15-16 and 18.
~381ndeed, the Fourth Ministerial North Sea Conference of May
1995 agreed to seek Annex I special area status for the North
Sea: Declaration, para. 44 (i).
139Government Response, p 15.
14°lbid, p 18.
~41Para. 10.13; Recommendation 30.
 A European lawyer's view of the Government response to the Donaldson Report: G Plant
consider supporting the international introduc-
tion of electronic tagging of containers carrying
the most hazardous or polluting substances, but
only if current moves to make mandatory the
existing voluntary IMO code of practice on the
stowing and securing of2cargo prove inadequate
to solve the problem.
As to strengthening the system of port State
control, the essence of the proposals set out in
Chapter 11 of the Report are discussed above,
but one feature of these deserves comment here.
The Report recommends, and the G o v e r n m e n t
accepts, that the U K should take an expansive
definition of 'port' for the purposes of enforce-
ment jurisdiction, to include in it all areas within
harbour authority limits, whether or not these
are a 'port '143 in the sense of offering either
shelter from the elements or loading and dis-
charge facilities, even where these limits extend
several miles out to sea. 144 This is not objection-
ble if the ships in question are subject to the
so-called 'destination principle' of jurisdiction,
because they have used or are there to use the
port facilities, but care should be taken, as the
G o v e r n m e n t recognises, 145 to exclude passing
vessels in innocent or transit passage and not
using or intending to use those facilities. 146
(2) Navigation, routeing and shore-based
surveillance, plus insurance, compensation and
other 'indirect' aspects concerned
(a) In Chapter 13, entitled Navigation and Gui-
dance to Mariners', the Report recommends the
following: (i) active and frequent checks on
whether vessels have up-to-date charts, cor-
rected up to date, as part of port State control, ~47
which the G o v e r n m e n t is now considering; ~4s
(ii) the correction of distance tables used by
mariners to take into account the extra distance
r e q u i r e d by t h e f o l l o w i n g o f r o u t e i n g
measures, 149 on which the G o v e r n m e n t is con-
sulting with B P ] 5° the main British author of
~42Government Response, p 19.
143Or permanent harbour works or roadstead or offshore termin-
al: cf Articles 11, 12, 25(2) and 218-220 LOSC; see also EC Port
State Control Directive, op cit Ref 39, para. (e).
~**Paras 11.9 and 17.36-43. Cf Recommendation 102(e).
145Government Response, p 62.
146Where the exercise of port State jurisdiction must not hamper,
deny or impair their rights: Articles 24, 42(2) and 44 LOSC.
~4ZPara. 13.24; Recommendation 45(d). It is a requirement of
SOLAS reg. V/20 that ships have on board charts adequate for
the voyage on which they are engaged.
~48Government Response, p 26.
~49para. 13.39; Recommendation 51(b). The idea is to prevent
masters being placed under undue pressure by owners or
operators questioning the time and fuel used on the basis of
distance tables reflecting the shortest geographical distances
between two points.
~5°See Government Response, p 29.
such tables; 151 (iii) persuading shipowners,
through the IMO, to give clear guidance to
masters on the safety margins they should
observe to take account of unforeseen eventuali-
ties, such as breakdown near and drifting onto
d a n g e r o u s or e n v i r o n m e n t a l l y v u l n e r a b l e
coasts, ~52 which the Government has accepted; 153
and (iv) the updating of SOLAS to require the
fitting of electronic position fixing equipment, t54
in preference to obsolescent direction find-
ing equipment, and the provision of battery-
powered back-ups for these (in addition to
emergency electrical systems) 155 to operate
during total electrical failures, ~5° which the
G o v e r n m e n t has also accepted. ~57 Finally, the
Report rejects the concepts of compulsory deep
sea pilotage ts~ and tanker escort, 159 and the
G o v e r n m e n t Response, sensibly, does not seek
to re-raise these issues.
(b) Chapter 14 of the Report, on ships' routeing,
describes the primary purpose of routeing as
enabling ships to follow those routes where they
are least likely to be involved in a collision,
grounding or other incident; the second purpose
is keeping them a certain distance offshore just
in case they get into trouble; 16° and the third as
keeping them them out of environmentally
sensitive areas. ~ It rejects as unworkable the
keeping of potentially polluting vessels at fixed
distances offshore, in place of ships' routeing,~62
and there is, quite correctly, nothing in this
G o v e r n m e n t Response to contradict this.
The Report then examines the adequacy of
the existing ships' routeing measures around the
U K coast and proposals for their amendment. 163
While it is content with the new arrangements in
Scotland, 164 it is concerned by the omission of
~SlSee BP Shipping Ltd, BP Marine Distance Tables, London,
1991.
152Para. 13.40; Recommendation 51(c).
la3Government Response, p 29.
~54That is GPS or SATNAV: para. 13.50; Recommendation
53(a).
~55para. 13.54; Recommendation 53(b).
~SSpara. 13.51; Recommendation 53(b).
157Government Response, p 30. It is helping draft amendments
to SOLAS Chapter V to this end.
~58para. 13.66. This, it says, besides being difficult to operate in
practice, will not necessarily add to safety and may reduce it. See
now Plant, op cit Ref 90, Chapter 11, Section 1.3.
~59para. 13.80. To be effective such tugs would have to be full
scale salvage tugs, and so prohibitively expensive. See now
Plant, ibid
~S°lt notes that, of course, these two aims can conflict: para. 14.2.
~6~lbid For further discussion of ships' routeing and the law see
Plant, op cit Ref 90, Chapters 9, 10 and 16, Section 2.
~62para. 14.116. New Zealand now operates such a system.
~63paras 14, 17-74.
1641t:supports the recent IMO changes to the areas to be avoided
around Shetland and the new recommended routes in the Fair
Isle Channel (para. 14.33-35, and see MSC 63/7/18, 25 March
1994); accepts the present arrangements concerning the Minch
463
A European lawyer's view of the Government response to the Donaldson Report: G Plant
the North Channel and South West Wales traffic
separation schemes from the areas for which the
U K sought IMO approval for coverage by
voluntary ship reporting systems; 165 it notes that
these are routes more frequently travelled and
e n v i r o n m e n t a l l y vulnerable than even the
Minch. 166 It is similarly concerned with the
Skomer/Grassholme Islands gap near Milford
Haven and with the Isles of Scilly,167a
The ships' routeing systems the Report con-
templates have two significant characteristics, as
follows:
(i) They are all voluntary. An amendment to
SOLAS Reg. V/8 to permit routeing systems to
be made mandatory in appropriate cases has
recently been adopted by the I M O , 167b but the
Report suggests that "voluntary routeing mea-
sures should be made compulsory only if there is
evidence that there is a significant difference in
the level of observance of voluntary and manda-
t o r y m e a s u r e s " . 168 The U K G o v e r n m e n t
agrees, 169 and has taken measures to research
the extent to which masters accept IMO-backed
routeing advice. 170
The Report goes on to suggest that "Port
State j u r i s d i c t i o n . . , provides the best means of
improving observance of routeing measures". 171
In the absence of a specific international agree-
ment bestowing such jurisdiction on port States,
however, it is difficult to see how this is so. 172
The Government is happy to investigate the
feasibility of making information on operational
contraventions available on the Paris MoU
S I R E N A C database, ~73 is considering the possi-
bility of asking for Paris MoU inspections to be
and the deep water route 'West of the Hebrides' (paras 14.39-
61), subject to some amendments (including an extension of the
deep water route: see Recommendation 61 (a) and (b)), which the
Government accepts (Government Response, p 35); and en-
dorses the new voluntary ship reporting schemes in Scottish
waters: para. 15.41.
lSSSee Recommendation 62(a).
166Paras 14.64-69.
~67aparas 14.70-74; Recommendations 62(b)-(d) and 63.
187blMO Res. MSC.46(65).
~88Para. 14.94; Recommendation 55.
169Government Response, p 32.
~7°See ibid pp 32 and 43 (information derived from the voluntary
MAREP schemes operating around the Isles of ScUly, in the
Minch and in Pentland Firth since November 1993 suggest a
99% compliance rate); also IMO Doc. NAV 40/4/4, 14 June 1994.
171Paras 14.91 and 14.102. See also Recommendation 39, 45(f),
60 and 72(b).
172How can a port State properly make compliance with a
routeing scheme outside its waters a condition for entry to its
ports? Article 218 LOSC, moreover, which is perhaps the widest
port State jurisdiction provision in any treaty, but which probably
does not have international customary law status (see Patricia
Birnie and A E Boyle, International Law and the Environment,
Clarendon Press, Oxford, 1992, p 282) applies only where the
breach has resulted in a polluting discharge.
~73Government Response, p 24.
464
extended to required demonstrations from chart
and log of the routes followed on the inward
voyage to port 174 and has instructed HM Coast-
guard to ask for explanations of contraventions
by ships reporting in to it, 175 but it does not
consider it proper to extend special (self-
targeted) port entry reporting conditions to such
matters, as they are not connected to the physic-
al condition of the ship. 176
(ii) The routeing measures suggested are all to
be IMO-approved. The Report "accepts the
Government's view 177 that only routeing mea-
sures agreed internationally through the IMO
have any chance of being observed by ships of all
flags, and that any development of routeing
measures is best conducted through the IMO.
Unilaterally applied routeing measures, im-
p l e m e n t e d through port State jurisdiction,
would inevitably be second best, because of the
severe limits on their enforceability [, although
t]here may still be some scope for them (foot-
note added)". 178 This reasoning, with respect, is
not entirely persuasive, at least in respect of
schemes lying entirely within territorial or inter-
nal waters. It is clear that IMO adoption of a
scheme can only help, but Article 22 LOSC
makes it clear, for example, that, in waters to
which the right of innocent (as opposed to
transit) passage applies, the coastal State is free
to prescribe and enforce rules and regulations
governing routeing systems and need only take
into account the IMO's recommendations in
doing so.
(c) Chapter 15 of the Report, entitled 'Identi-
fication and Reporting', makes many recom-
mendations on ship reporting systems. It stresses
that radio-based systems ought to be largely
superseded by inexpensive automatic reporting
systems. These would entail the compulsory
fitting of on-board transponders capable of auto-
matically communicating all the necessary in-
formation to interrogating shore-based installa-
tions. Radio-based systems would then, it is
assumed, assume a residual, back-up role. It
would also have a useful role in establishing
direct, interactive communication between ship
and shore, for example at the time of the vessel's
entry into the shore station's zone of operation,
when the shore authorities will have the oppor-
tunity to ask about any potential problem which
might not be a u t o m a t i c a l l y conveyed via
transponder. 179 The Government agrees and has
1741bid, p 26.
1751bid, p 43.
1781bid, p 34.
177Now expressed in ibid, p 32.
178Para. 14.91.
179See paras 14.49-53.
 A European lawyer's view of the Government response to the Donaldson Report: G Plant
taken action accordingly.~8°
The Report goes on to accept that the EC
'Pre-Entry Reporting' Directive 181 might be
useful, 182 although it prefers the IMO's tradi-
tional approach to ship reporting, based on
(interactive) ~8-~ ship-to-shore communication as
vessels enter the zone of operation, adopting
mandatory systems ~84 only where clearly neces-
sary, rather than the E u r o p e a n approach of
'pre-entry' reporting, by radio, ~85 before leaving
the previous port of call. It is also sceptical of the
proposed E U R O R E P Directive. ~6 The Gov-
ernment agrees with this approach and notes the
criticisms of the proposed Directive, the con-
sistency of which with international law is
doubtful 187 and negotiations on which are
continuing• 188
(d) Chapter 16 of the Report gives three pur-
poses for shore-based surveillance, (including
tracking) of offshore shipping traffic: the faci-
litation of emergency aid; pollution control; and
policing and detection of wrongdoing. =89 It re-
jects the concept of positive management of ship
movements by vessel traffic services (VTS) sys-
tems, the nearest marine equivalent to air traffic
la°See Government Response, p 39. Indeed, it singles out its
proposal for the mandatory fitting of transponders in the IMO (see
IMO Docs NAV 39/4/9 and MSC 64/9/2, 9 September 1994, and
64/INF.8, 14 October 1994, and the IMO's favourable response
in MSC 64/22, 2 December 1994, para. 9.40) as a particularly
important example of its leadership on safer seas and cleaner
ships: see further op cit Ref 26.
~a~Op cit Ref 39, para. (a).
a2For example, by permitting shore authorities to obtain informa-
tion on the proposed routes of ships bound for Community ports
with a view to persuading them to use safer routes: para. 15.43.
183Where there is a high level of interaction, the system is more
correctly described as a vessel traffic services (VTS) system: see
Plant, op cit Ref 90, Chapter 11, Section 1.2.
la4When new SOLAS Reg. V/8-1 comes into force, on 1 January
1996, in accordance with IMO Res. MSC.31(63), ship reporting
may be made mandatory in such zones, where appropriate, on
the basis of guidelines and criteria for mandatory ship reporting
systems, approved in IMO Res. MSC.43 (64). As to when
mandatory systems might be otherwise lawful, see Plant, ibid,
Chapter 11, Section 2.
~85Recommendation 70(c) encourages the UK Government to
persuade the EC Commission to think in terms of transponders,
rather than radio.
~860p cit Ref 39, para. (f). See para. 15.68; also paras. 15.45-67
and 15.69-70.
~87The EC's Economic and Social Committee appears to be of
the view that new SOLAS Reg. V/8-1 can and should be used to
require all entering ships carrying dangerous cargoes, whether
calling at European ports or not, to report in when they enter a
zone 150 nautical miles from shore: Opinion, 94/C 295/06, 1 June
1994; OJ C.295/28, 22 October 1994. But the SOLAS amend-
ments are not intended to authorise mandatory ship reporting in
such a huge zone. See also Plant, 'Safer Ships and Cleaner
Seas: A Review Article on Lord Donaldson's Inquiry into the
Prevention of Pollution from Merchant Shipping', 9, I.J.M.C.L.
(1994) pp 535, 551-552.
~aaGovernment Response, pp 40-41.
~a9para. 16.1
control, as impracticable and undersirable. It
states: 19o
The number of variables involved in making decisions
on ship manoeuvres is so high, the likelihood of
unreported changes in some of them (such as the
location of sandbanks) is so great, and the difficulty of
ensuring that all craft are covered by a scheme is so
large, that it has seemed essential to leave the final
decision to the person in control of the ship.
The usefulness of vessel tracking, however, is
only recognised for policing purposes where
there is a certain density of traffic ~91 or limited
sea room and 'conflicting movements' of that
traffic. 19e The G o v e r n m e n t agrees and thinks
that, in waters around the UK, only the Dover
Strait qualifies. 193
Most mariners and many shore-based marine
professionals would agree with this assessment.
On the other hand, the European Commission's
attachment to mandatory coastal VTS as part of
the answer to the problem of ship-source pollu-
tion in Community waters 194 is in sympathy with
some recent legislation in a number of Member
(and other coastal) States influenced by strong
environmentalist lobbies, particularly Italy. 195 If
• •
the technical problems of vessel identification
and target definition ~96 can be resolved and an
acceptable delineation of responsibility and
liability between shore authorities and shipping
interests found, 197 the maritime community's
attitudes towards mandatory coastal VTS may
change, at least where they operate in particu-
larly sensitive areas and are seen as a means of
forestalling unilateral claims even more restric-
tive of international rights of navigation. 198
19°At para. 16.24. For further discussion of VTS see Plant, op cit
Ref 90, Chapter 11.
191About 20 large vessels or many more smaller vessels passing
through each day is suggested.
~gZPara• 16, 27-28.
19aAIthough it is also conducting a programme of radar surveys to
secure a better picture of shipping movements off the UK coast
elsewhere. Government Response, p 44.
1941n Article 6 of the Proposal for a EUROREP Directive, op cit
Ref 39, para. (f).
195Italy's Law No 220 of 1992 (Gazetta Uficiale della Republica
Italiana, No 62, 14 March 1992, p 3) empowers the Minister of
Merchant Marine to require ships to follow movement instructions
in VTS zones and to register every movement with the relevant
VTS station; apparently, this is not restricted to territorial waters.
See further Plant, op cit Ref 90, Chapter 11, Section 2.2.
196See, eg, para. 16.38.
~97para. 16.62 recommends that Coastguards should warn ships
of impending infringements of the Colregs and "the DoT should
accept the principle that on rare occasions Coastguards should
give navigational advice, and that it may be impracticable for
them to seek the assistance of an expert" and that they should
not be constrained from doing so by fears of personal liability; see
also Recommendations 94(d).
~9aAs to this see Plant, op cit Ref 7, generally and Plant,
'Mandatory Coastal VTS and the Alternatives: The Road Ahead',
Safety at Sea International, July 1994, pp 23, 25.
465
A European lawyer's view of the Government response to the Donaldson Report: G Plant
(e) A n u m b e r of proposals on control of fish
factory ships operating in U K waters follow in
Chapter 17, w h i c h t h e G o v e r n m e n t is
considering; 199 Chapter 18 makes a n u m b e r of
recommendations, based on the notion of en-
lightened self-interest, to the marine insurance
industry, 2°° as well as a call for international
action to m a k e third party liability insurance
m a n d a t o r y for potentially polluting vessels
under the 1976 Liability Convention, e°l which
the G o v e r n m e n t has acted upon; 2°2 and Chapter
20 is devoted to other liability and compensation
questions. Its principal recommendations, be-
sides ratification of the 1992 Protocols to the
C L C and Fund Conventions, 2°3 are the monitor-
ing of their deterrent effect, 2°4 the raising as
necessary of limitation levels and of the stan-
dards for breaking them, 2°5 and the continua-
tion of efforts in the I M O to achieve a liability
regime governing hazardous and noxious subst-
ances not covered by other joint compensation
schemes. 206
(3) Response to casualties
A related r e c o m m e n d a t i o n in Chapter 20, on
' E m e r g e n c y Towage and Salvage', is that the
I O P C Fund should treat private salvage opera-
tions as c o m p e n s a b l e 'preventive measures',
even where the primary purpose of the opera-
tion is not to prevent pollution but to save
property; 2°7 the G o v e r n m e n t is examining this,
in collaboration with the Fund. 2°s If accepted,
this, a n d t h e o t h e r r e c o m m e n d a t i o n s on
salvage, 2°9 should render salvage operations in
199Government Response, p 47.
2°°See also Recommendations 78-79.
2°1The 1976 Convention on Limitation of Liability for Maritime
Claims, Cmnd. 7035. See also Recommendation 84(d). Amend-
ments to this Convention are being considered in the IMO.
2°21nfra Ref 212, para. (iv).
2°30p cit text at Refs 12 and 13.
z°4Para. 19.20-21.
=°5Recommendations 80, 82 and 83.
a°6Para. 19.43-44; Recommendation 84(a)-(c).
2°TPara. 20.55; Recommendation 86(d). This is a sensible pro-
posal, given that this is usually the case and that salvors'
possibilities of recovery for environmental measures taken are
limited: Catherine Redgwell, 'The Greening of Salvage Law',
Marine Policy, Vol 14, 1990, p 142 and Plant, op cit Ref 90,
Chapter 14, Section 3.3.2. Courts and arbitrators, in fixing
salvage awards, are also recommended to take greater account
of the cost to private salvors of maintaining stand-by facilities:
para. 20.75; Recommendation 80.
2°SGovernment Response, p 53.
2°9Owners' standing instructions to their masters should, it is
suggested, authorise him to call for assistance on his own
authority: para. 20.133; Recommendation 86(a). This is accepted
by the Government, as conforming to existing domestic law
implementing the 1989 Salvage Convention, and will help avoid
another Amoco Cadiz: Government Response, p 52. Once
salvage assistance is requested, moreover, it is recommended
that the requesting ship should be deemed by statute to be in
peril and so will be liable to a salvage award (and any incidental
466
areas close to the U K more profitable and so
facilitate the r e c o m m e n d e d revival of salvage
coverage discussed above.
(4) Responses to unpreventable pollution
Finally, Chapter 21 contains a n u m b e r of recom-
m e n d a t i o n s c o n c e r n i n g t h e c l e a n - u p of
pollution. 21°
Conclusions
Only an experienced lawyer and former Judge with
extensive experience of maritime law, and with the
able assistance of two knowledgeable technical
Assessors, could have produced as comprehensive
and persuasive a R e p o r t as this concerning the
polycentric issues tied up with the protection of
coasts from ship-source pollution. The R e p o r t is
already shown to have served as an important source
of inspiration for decision makers, not only in the
U K G o v e r n m e n t but m o r e widely.
The document is by no means conservative or a
'white wash' and it has resulted in the U K taking the
lead in E u r o p e , 211 the I M O 212 and the 1LO. 213
arrests) even if she manages to get under way before assistance
arrives: para. 20.138; Recommendation 86(f). This would put an
end to the kind of abuse whereby tanker masters can keep
salvage vessels standing by, at great expense to the salvor, just
in case they cannot fix the fault themselves, while prevaricating
about agreeing a contract. The Government is considering the
need for this: Government Response, p 53. It is not clear,
however, how a UK statute to this effect could be very effective
internationally. Although most salvages are conducted under
Lloyd's Open Form of Salvage Contract, and so are subject to
arbitration in England where such a statute could be made
applicable, jurisdiction nevertheless depends upon the accept-
ance of that contract by the master of the ship in question. If,
alternatively, the jurisdiction of the Admiralty Court were relied
upon, such a statute would involve an assertion of extra-
terrestrial jurisdiction over foreign ships uncharacteristic of the
UK.
21°See also Recommendations 90-93 and Government Re-
sponse, pp 54-57.
2111n particular: (i) in the EC, it has: strongly supported the
adoption of the Directive on Classification Societies and Regula-
tion on SBTs, and pressed for the text of the Port State Control
Directive, now agreed (as to all of which, see op cit Ref 39) to be
flexible enough to take account of the future developments
arising from improved targeting of sub-standard ships (Govern-
ment Response, p 20); proposed a Europe-wide monitoring of
maritime traffic flows under the Trans-European Network project:
ibid, p 32; and sought harmonisation of the MEHRA and MESA
concepts; (ii) in Paris MoU meetings, it has submitted papers on:
the Report's proposed new port State enforcement scheme to the
Port State Control Committee, which accepted a proposal for a
weighted Targeting Factor designed to enhance the targeting of
potentially high risk ships (ibid, p 22, and see op cit Ref 57); and
is investigating the feasibility of making details of operational
contraventions of routeing advice available on the SIRENAC
database; (iii) in both, it intends to consult on extensions of
inspection charges to be levied on individual ships in proportion
to their individual propensity to pollute (ibid, p 59) and on a
possible new fund to pay for emergency response (ibid, p 60);
and (iv) in the Anglo-French Navigation and Accident Technical
Group, it initiated discussions on improving the effectiveness off
 A European lawyer's view of the Government response to the Donaldson Report: G Plant
Whether or not the IMO, as well as the EC, will
adopt a higher profile, including in compliance mat-
ters (with all its political consequences for the Orga-
nisation), remains to be seen, however.
In two fundamental respects, moreover, the Re-
port confines itself to a traditionalist approach, as
does the UK Government in following it. First, it
calls for no radical changes in jurisdictional com-
petencies of port of coastal States; it recommends
traffic surveillance in the Dover Strait through the UK VTS system
there, the Channel Navigation Information Service (and its
French equivalent--as to both of which see Plant, op cit Ref 90.
Chapter 11, Section 1.4): ibid, p 37-38.
2121n particular: (i) in the Organisation generally it has been
pressing for: a lifting of the ban under SOLAS Reg. 1/21(b) on the
publication of the results of accident investigations; the fitting
where appropriate of voyage data recorders (Government Re-
sponse, p 10); the revision of the STCW Convention to include
the use of function-related elements to direct training to specific
on-board tasks, requiring flag States to issue their own certifica-
tion to seafarers, strengthening of the system of reporting any
dispensations and requiring a common language on board (ibid,
pp 13-14). It is also planning, following the gathering of more
experience and/or consultation, to introduce papers on: the use
of high tensile steel in construction (ibid, p 7); on-board testing
and retention of bunker samples in connection with fighting the
contamination of fuel oil (ibid, p 9); and revision of the guidelines
in Res. A.535(13) on forward emergency towing arrangements
(ibid, pp 10-11); (ii) in the MEPC, it is planning, when it has
sufficient feedback to be able to make practical proposals, to
present a paper urging the introduction of an effectiveness-
monitoring system for MARPOL requirements (ibid, p 5); (iii) in
the MSC and NAV Sub-Committee, it is pressing, with its EC
Partners' support, for a SOLAS amendment on the mandatory
fitting of transponders as soon as possible; (iv) in the Legal
Committee, it is: playing a major role in efforts to negotiate an
HNS Convention; and proposing consideration of compulsory
liability insurance under the 1976 Limitation Convention: IMO
Doc. LEG 71/3/2, 18 July 1994, and LEG 72/4, 20 January 1995;
(v) in the FSI, it is: pressing for action against Flag States with
poor records and a review of Res. A.739(18); and planning to
propose, with EC Partners' support, treaty-based improvements
to marine accident investigation (ibid, pp 27-28); and (vi) in the
Ship Design and Equipment Sub-Committee, it is planning to
submit proposals on improved ship inspection procedures (ibid, p
8). It also submitted a paper to the IOPC Fund (see FUND/
WGR.7/21, 20 June 1994, para. 7.2.11-.17) on, and pressed
Member States to agree a formula for the uplift (in liability
proceedings) of any marginal costs so as to reflect a reasonable
proportion of fixed costs (ibid, p 48). In addition, it announced its
willingness to work with other States on any necessary revision to
the Fund Convention (or, indeed, the CLC: see IMO Doc. LEG
71/INF 3, 4 October 1994) to prevent the shipowner's right to limit
liability providing excessive protection to reckless operators, ibid.
Lastly, it initiated discussions on whether or not there are types of
salvage which have a useful result but are denied compensation
under the Fund's rules. Finally it has taken legal advice on the
compatibility of its acceptance of Recommendation 87 (on pow-
ers of intervention against casualties) with the 1969 International
Convention Relating to Intervention on the High Seas in Cases of
Oil Pollution Damage (Cmnd. 6056) and its 1973 Protocol (Cmnd.
8924), and appears to contemplate seeking their amendment, if
necessary: ibid, p 54; and see op cit Ref 86.
2131n particular, it is playing a prominent role in the current
revision of ILO Convention 147 concerning minimum standards
on merchant ships: Government Response, p 12.
that the UK take and exercise the maximum jurisdic-
tional powers permitted under Public International
L a w , but it does not contemplate major changes to
that law itself. Sufficient flexibility is built into the
LOSC text to permit greater emphasis to be placed
on environmental protection from ship-source pollu-
tion, although it may be that it ultimately favours
navigation at the expense of the environment.
Second, it places emphasis on voluntarism and en-
lightened self-interests, backed up with sanctions
only where absolutely necessary. This is no doubt
the best way to encourage greater caution and
compliance with environmental protection measures
by good masters, and even they are often busy with
more pressing concerns, but not the poor or unscru-
pulous master. Binding measures, backed up with
effective enforcement, may be necessary at certain
times or in certain locations, as a normal measure.
These two points are perhaps best illustrated by
the proposal to establish M E H R A s . While under-
standably stopping short of a complete overhaul of
the navigation/environmental protection balance in
the LOSC, 214 the international community has
already gone beyond mere voluntary informational
systems for traffic regulation. Besides accepting the
principles of mandatory routeing and ship reporting,
in appropriate places and with IMO approval, 125 it is
actively discussing the possibility of developing the
PSSA concept and placing it on a firmer legal basis.
Indeed, in relation to the existing PSSA in Australia,
the IMO has already called upon Member States to
"recognise the need for effective protection of the
Great Barrier Reef region and inform ships flying
their flag that they should act in accordance with
Australia's system of [compulsory deep sea] pilotage
for merchant ships". 2r6 While this stops short of fully
endorsing a system of compulsory pilotage backed
up by criminal penalties, it comes very close. Com-
pulsory deep sea pilotage is probably not appropri-
ate off the UK (nor, indeed, is it in most waters), but
other mandatory measures might be, whether these
relate to such 'traffic' matters, or to discharge pre-
vention and control, or even to construction, design,
equipment and manning standards, 217 at least in the
most environmentally sensitive sea areas.
Acknowledgement
The author wishes to thank Stefan Lindstrom for his
research assistance.
214As to this see Plant, op cit Ref 90, Chapter 17, Section 1.
2150p cit, text at Refs 90-92.
2161MO Doc. MEPC 45/30, 16 November 1990.
217As to all the possibilities, see Plant, op cit Ref 90, Chapter 17,
Section 2.
467