The Polar Code and IMO Guidelines

 (by Brit Fløistad and Lars Lothe)

The International Maritime Organisation (IMO) is a specialized agency for the United Nations with 169 member states. IMO’s main task is to develop and maintain a comprehensive regulatory framework for shipping addressing issues within “safety, environmental concerns legal matters technical cooperation maritime security and the efficiency of shipping¹ ”. The IMO must be characterised as the central and representative forum for all issues to the shipping industry internationally.

The core legal instruments for safety an environmental protection at sea have been, and still are, the SOLAS convention (Safety of Life at Sea) , the STCW convention (The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers 1978/-95), and MARPOL (International Convention for the Prevention of Pollution from Ships), both ratified by all Arctic states. These conventions were adopted within the framework of IMO, they apply globally and, of course, then also to the Arctic Ocean. Specific rules for the Arctic were originally suggested by Germany as an amendment to the SOLAS convention² . Development of the safety for vessels operating in polar waters began in 1993 within the framework of the IMO.  In 2002 the IMO Guidelines for Ships³   (the IMO-Guidelines) operating in Arctic Ice-covered Waters were adopted⁴ ,  applicable to all parts of the Arctic Ocean. The IMO-Guidelines are therefore a supplement aimed at the special circumstances in the Arctic. This is precisely mentioned in the preamble:

”ACKNOWLEDGING  that  the  polar  environment  imposes  additional  demands  on  ship systems beyond the existing requirements of the International Convention for the Safety of Life at  Sea  (SOLAS),  1974  and  the  International Convention  for  the  Prevention  of  Pollution  from Ships, 1973, as modified by the 1978 Protocol relating thereto (MARPOL 73/78), as amended⁵ .”                                      

For a more detailed analysis of the IMO-Guidelines’ material contents see chapter 5. Some main characteristics will, however, be discussed in this chapter related to the issue areas dealt with by the IMO-Guidelines: construction, equipment, operational, and environmental protection and damage control. First we will discuss the meaning of the current IMO-Guidelines being “non-binding” and shortly analyse the desirability and impact of a binding regime. The IMO-Guidelines are non-mandatory, merely recommendations. For the IMO-Guidelines to become legally binding thus depends either on the individual states implementing the regulations in their national legislation⁶ , or the adoption of the IMO-Guidelines as a binding treaty, maybe in the form of an amendment to the SOLAS convention. Efforts have been made since 2008 by IMO to reach agreement on legally binding IMO-Guidelines. Here it may be of interest to note that in his foreign policy statement to the Storting 10 February 2009, Minister of Foreign Affairs Jonas Gahr Støre pointed to the importance of not only completing the amendment of the IMO-Guidelines but to make it mandatory. Even though this work is uncompleted, the IMO-Guidelines have major implications already in their current form and status:

Firstly, the IMO-Guidelines are adopted by a very representative and authoritative international body reflecting the intentions of all IMO member states. In its introductory remarks, the IMO Assembly suggest that member states should give considerable weight to the Guidelines:

 “INVITES  all  Governments  concerned  to  take  appropriate  steps  to  give  effect  to  the  annexed Guidelines for ships constructed on or after 1 January 2011; ENCOURAGES all Governments concerned to take appropriate steps to give effect to the annexed  Guidelines  for  ships  constructed  before  1  January  2011  as  far  as  is  reasonable  and practicable;  RECOMMENDS  Governments  to  bring  the  annexed  Guidelines  to  the  attention  of  ship owners, ship operators, ship designers, shipbuilders, ship repairers, equipment manufacturers and installers and all other parties concerned with the operation of ships in polar waters⁷ .”                                              

Further, the IMO-Guidelines are already of considerable practical significance through their actual use by the shipping industry and classification societies by adopting the IACS Unified Requirements for member societies, (see chapter 5). The main reason may very well be simply that the Guidelines provide the actors with a useful tool. Although not tried before any court, it is a reasonable assumption that compliance with the Guidelines will be given substantial weight in any case where negligence on the part of the ship-owner or -operator becomes an issue. As most liability, e.g. for oil spill will be strict liability, the question of negligence will most likely emerge if the insurer seeks recourse from the insured after first having paid for the loss incurred. By the adoption of the IACS requirements which are linked to the IMO-Guidelines by reference, adherence and compliance will also have an impact for the possibilities of getting insurance at all. It should here be mentioned that availability and cost of marine insurance is a restraint to Arctic shipping. The insurance industry has been willing to provide insurance on a case-to-case basis, but the lack of actuarial experience makes it very difficult to assess the risks involved⁸ .                                                                             

Making the Guidelines mandatory will still make a substantial difference. We will see later in this chapter and we have seen in chapter 5 that the Arctic states have passed national legislation within the areas covered by the IMO-Guidelines, most importantly Russia and Canada. However, legally binding IMO-Guidelines (in the form of a treaty or amendment to the SOLAS convention) will provide an obligation for the Arctic states to adopt legislation with standards at least as ambitious as those contained in the IMO-Guidelines. This provides a potential for harmonization of the requirements that would be beneficial to the shipping industry. However, the Arctic states have very different legal and legislative traditions and they would in any case be free to adopt regulation with higher standards than the Guidelines. One should therefore not exaggerate the harmonization effect. Although the Arctic states can enforce the regulations within their national waters, it would add substantial value if all members of IMO joined in adopting them, not least so that non-Arctic flag states become bound by the rules. Further, adoption of mandatory rules will certainly add to existing regulations in areas beyond national jurisdiction, such as the TPP.           

The unconditional requirement in the definition of “ice-covered waters” is a sea-ice construction of 1/10 coverage or greater, which pose a structural risk to ships. There is no requirement, as in article 234 of “ice most of the year”. Thus the IMO-Guidelines for Ships apply to the entire Arctic Ocean with the explicit exception of some areas including waters adjacent to the Norwegian mainland coast and the waters adjacent to the Kola Peninsula.      

The point of departure of the IMO-Guidelines is the recognition of the Arctic as an environment that imposes additional demands on ship systems and that safe operation in ice-covered areas requires special attention² .  The IMO-Guidelines thus define additional special measures for safety of life and protection of natural environment deemed necessary for the Arctic Ocean, containing specific guidance concerning equipment for fire safety, lifesaving and navigation, and paying special attention to operation procedures, crewing and emergency equipment. According to the IMO-Guidelines all ships operating in Arctic ice-covered waters are to carry an operating manual and a training manual for all ice navigators on board⁹ .  The ships operating manual shall also contain special procedures for protecting the environment.

The IMO-Guidelines introduces a system for differentiating between polar and non-polar ships, as it is recognized that not all ships will be able to navigate safely in all areas of the Arctic at all time of the year⁹ .  As for shortcomings it is pointed to the fact that there is no recognized internationally approved training course for ice navigators, and that the stipulation in the IMO-Guidelines that the ice navigator should document having completed satisfactory training are phrased in rather broad terms⁹ . The IMO-Guidelines also lack requirement as to documented navigation service in Arctic ice conditions¹⁰ .  It is also maintained that the serious hazard of ice-infested navigation should have been regulated more extensively⁹ .

Brit Fløistad and Lars Lothe, 2010, The Polar Code and IMO Guidelines, CHNL.©