By David K. Jones
A Vancouver lawyer with Bernard LLP
Historically, and to the present day, the polar regions have attracted intrepid explorers, travellers and commercial interests seeking fame, fortune or the experience of the unique environments of the Arctic and Antarctic regions.
The challenges and dangers of polar travel are evidenced by the many failed historical expeditions such as the Franklin Expedition. More recently, the navigation of polar waters continues to be challenging as evidenced by the groundings in the Arctic of the Clipper Adventurer in 2010 and the Akademik Ioffe in 2018, and the sinking of the MS Explorer in 2017 in the Antarctic. These incidents are stark reminders that navigation in polar waters can be hazardous.
A number of factors contribute to the risks of Arctic and Antarctic navigation. Extreme and unpredictable weather is a risk. Variable ice conditions imperil navigation and safety. Hydrographical surveying and charting has been limited in the Arctic with wide areas of nautical charts showing no soundings or a single line of soundings from a long-ago voyage. Services such as navigational aids and search and rescue resources which are readily available in more temperate regions are much less available due to the remoteness and harsh conditions of the Arctic and Antarctic.
The Polar Code
With an increasing number of ships operating in the Arctic and Antarctic, international focus on the polar regions led to the adoption by the International Maritime Organization (IMO) of an international treaty on the safety of ships operating in polar waters: the International Code for Ships Operating in Polar Waters, known as the “Polar Code,” which came into force on January 1, 2017.
The goal of the Code is to provide for safe ship operation and the protection of the polar environment by addressing risks present in polar waters and not adequately mitigated by other instruments of the IMO. The Code is described on the IMO website as covering “the full range of design, construction, equipment, operational, training, search and rescue and environmental protection matters relevant to ships operating in the inhospitable waters surrounding the two poles.”
The preamble to the Polar Code outlines a number of principles upon which the Code is based, summarized as follows:
- the Code supplements existing IMO instruments to increase the safety of ships’ operation and to mitigate the impact on the people and environment in the remote, vulnerable and potentially harsh polar waters;
- polar water operation may impose additional demands on ships, their systems and operation beyond the existing requirements of SOLAS, MARPOL and other treaties;
- polar waters impose additional navigational demands beyond those normally encountered, particularly with limited chart coverage, and unsurveyed and uncharted shoals;
- communities could be, and polar ecosystems are vulnerable to human activities such as ship operation; and
- safety measures reduce the probability of an accident and as a result, relate to protection of the environment.
The text of the Polar Code is divided into two main parts: safety measures and pollution prevention measures.
The safety measures of the Code are in Part I-A, which is divided into 12 chapters covering topics such as a mandatory polar certification and ship survey; the requirement for a polar water operational manual including information and procedures for operating in cold weather and ice conditions; ship structural requirements for operating in low air temperatures and ice strengthened for operation in ice; ship subdivision and stability; water and weathertight integrity; machinery installations to function in conditions of ice and snow; fire safety and protection which is functional in icy conditions; lifesaving appliance and arrangements for escape, evacuation from the ship and survival off the ship; navigational safety considerations; communication equipment for ship-to-ship, ship-to-shore and survival craft and rescue boat communications; voyage planning; and manning and training specific to polar waters.
In addition to the mandatory provisions of these chapters, Part I-B of the Code includes additional guidance on the subject matter of these safety chapters.
Pollution prevention measures
The pollution prevention measures of Part II-A of the Code set out requirements to prevent pollution by oil in Chapter 1, and a prohibition of the discharge of oil. Subsequent chapters refer to the prohibition of the discharge of noxious liquid substances, harmful substances carried by sea in packaged form, sewage and garbage. Part II-B of the Code provides additional guidance regarding these subjects.
Canadian Arctic policy and implementation of the Polar Code
In 2016, Prime Minister Justin Trudeau announced that a new Arctic Policy Framework would be developed to replace Canada’s Northern Strategy (2009) and the Statement on Canada’s Arctic Foreign Policy (2010). The new Arctic Policy Framework is under development, but the two existing policies both state the federal government’s priorities in the North to include the exercise of Arctic sovereignty, the protection of the environment, the promotion of social and economic development and the improvement and devolution of Northern governance.
In 2017, as an action to enhance shipping safety and the protection of the Arctic environment, Canada implemented the provisions of the Polar Code with the Arctic Shipping Safety and Pollution Prevention Regulations, expanding on existing Canadian federal legislation — the Arctic Waters Pollution Prevention Act.
The existing Act is an important and symbolic statute which was originally enacted in 1970 in response to the 1969 voyage of the SS Manhatten through the Northwest Passage. The Act was a response to fears of marine pollution in the sensitive Northern environment and also an assertion of Canada’s claims to sovereignty in the Arctic region. The U.S. government challenged Canada’s right to regulate in the area, a classic example of the historic struggle between one state championing the principle of the freedom of the seas against a coastal state’s assertion of jurisdiction to regulate over expanding areas of the seas.
As its name implies, the existing Arctic Waters Pollution Prevention Act is focused on the prevention of pollution, prohibiting the deposit of “waste” — essentially defined as any substance that, if added to any water, would degrade or alter the quality of that water for use by man or any animal, fish or plant that is useful to man. The Act also empowers pollution prevention officers to inspect ships within a “shipping safety control zone” and to order a ship to proceed outside the zone if it does not comply with regulations relating to navigational aids and standards of construction.
The Regulations, which came into force on December 19, 2017, expand on the existing Act by generally incorporating the more detailed requirements of the Polar Code outlined above (as incorporated into SOLAS in Chapter XIV). The Regulations do not apply to fishing vessels and pleasure craft and there are exceptions and a different scope of application depending on the size of vessel, type of operation and classification of vessel. Also, a detailed Schedule to the Regulations restricts navigation in different areas of Arctic waters for different times of the year, with the area and time of year specified according to the classification of vessel. Finally, the Regulations include additional provisions relating to the Code’s pollution prevention measures.
With increasing levels of ship traffic occurring in Arctic waters, Canada’s implementation of the Polar Code is a timely advance in the promotion of shipping safety and the protection of the environment in sensitive waters where navigation can be challenging and perilous.
David K. Jones is a Vancouver lawyer with Bernard LLP and can be reached at [email protected]