© Springer-Verlag Berlin Heidelberg 2015Jürgen Basedow, Ulrich Magnus and Rüdiger Wolfrum (eds.)The Hamburg Lectures on Maritime Affairs 2011-2013Hamburg Studies on Maritime AffairsInternational Max Planck Research School for Maritime Affairs at the University of Hamburg2810.1007/978-3-642-55104-8_10
SOLAS Article VII and Pacific Island Passenger Services
School of Law, Victoria University of Wellington, Wellington, New Zealand
Where shipping services are concerned the Pacific Island states face significant geographical hurdles.1 Some island states are spread across the vastness of the Pacific Ocean; for example, a sea voyage between two islands in the Kiribati group can take several days. Some, like Tonga, are made up of dozens of inhabited islands. All are isolated in relation to the rest of the world and, in many cases, each other. Human geography is also a factor. From the communities of under 2,000 people on Niue and Tokelau, to the relatively sizeable Fijian islands of around 890,000 inhabitants, their populations are tiny in comparison with many cities – let alone countries. Finally, one cannot ignore the modest financial resources available in the region and the limited (or even non-existent) port facilities on many islands.2
With the exception of air services between major centres, particularly those servicing the tourism market, shipping provides the primary mode of transport throughout most of the Pacific.3 Given the geographical factors noted above, a feature of shipping in this region is that many domestic inter-island voyages would be equated with major international voyages in other parts of the world.4 Further, a combination of remoteness and small trade volumes pushes transport costs up,5 so maintaining safe and reliable shipping services between islands poses major financial and practical challenges. The problem is not so much with international liner services between larger centres,6 but rather with the process of moving goods and people to and from smaller islands.7 Large vessels may be used on some routes, but are expensive to operate. As a result the region has long relied on older, often poorly-maintained tonnage.8 Smaller vessels are required on other routes, as the lack of adequate port facilities on some islands means that risky at-sea transfers of cargo and passengers are required. In the latter case rough weather may prevent a scheduled voyage from being completed.
Against this background this paper contributes to the ongoing discussion about how best to ensure safe shipping in the Pacific region. In particular it focuses on the relationship between passenger shipping services in the Pacific region and the International Convention for the Safety of Life at Sea (SOLAS),9 the international community’s primary agreement relating to shipping safety. SOLAS is applicable to cargo vessels of 500 gross tonnage and upwards, and passenger vessels of any tonnage carrying more than 12 passengers, engaged on international voyages.10 The convention contains detailed technical regulations on a range of safety matters, such as life-saving appliances, fire protection features, and radiocommunications equipment that vessels must carry. In general terms passenger vessels must meet higher safety standards than cargo vessels. Ensuring compliance with these regulations falls primarily to the flag state, i.e. the state under whose flag a vessel is operating.11 The flag state role is reinforced by inspections undertaken by port states, i.e. the states whose ports a vessel visits,12 usually on a cooperative regional basis.13
SOLAS’ scope of application is particularly important here, because the distinction between international and domestic voyages can be problematic in the Pacific context. As noted above, some domestic voyages can take days on the open sea, but SOLAS does not apply to vessels engaged on these routes. Instead it is left to the state concerned to set any safety standards, and some parts of the Pacific have a poor track record in this regard.14 In other cases involving international voyages to isolated islands with small populations, and limited port facilities, it is difficult for countries to maintain regular SOLAS-compliant passenger shipping services.
The issue of non-convention vessels (i.e. cargo vessels of less than 500 gross tonnage), as ships engaged in domestic trades are sometimes referred to, has been the subject of regional attention for some time. In 1986 a South Pacific Maritime Code was produced, which attempted to provide a set of uniform model rules for the region’s governments to adopt, broadly consistent with international minimum standards.15 In the years which followed this code was not updated in line with developments at the international level, and has recently been phased out with the release of a new set of model legislation available to Pacific countries.16 Important as they are, these developments are not the focus of this paper, which instead looks at the more legally complex situation involving vessels on international routes.
The question posed here is whether it would be possible to develop a regional agreement under Article VII of SOLAS containing a set of standards specific to passenger shipping in the Pacific. These standards would involve less stringent safety requirements in relation to some aspects of passenger shipping in order to allow the operation of mixed cargo/passenger services on international routes between islands. This would be done for both practical and economic reasons. The practical reasons centre on the lack of port facilities available on some routes, thus creating a need for smaller vessels, and the geographical factor whereby in some cases an international voyage to an island will be shorter (and potentially safer) than a domestic voyage to the same island. The economic reasons relate to the efficiencies that could be gained by using shorter routes, and the fact that some passenger safety requirements are more expensive to comply with than those applicable to cargo vessels. For example, in 2001 it was noted that few operators in the region could afford a full set of the radio equipment required by SOLAS in the relevant sea area.17 Furthermore it is not necessarily easy (or affordable) to re-fit existing cargo vessels to meet the passenger safety requirements.
It is crucial to note that I am only discussing the possibility of such a development under international law. Obviously safety is the primary goal in this area. Making arguments involving compromises on safety standards for economic reasons is inherently uncomfortable. Accordingly the idea suggested here would only be feasible in conjunction with a sound technical, social and economic case from experts in other relevant sectors. This is not to suggest that this regulatory approach has not been discussed before. A development of this kind was the subject of regional discussions in the 1990s in connection with wider reforms to the regulation of non-convention ships, in light of which the Secretariat of the Pacific Community agreed that18:
[…] the normal differentiation between cargo and passenger ships derived from SOLAS (the carriage of a maximum of 12 passengers on cargo ships) was not appropriate for the region. This conclusion was based largely on the importance of inter-island sea transport to economic, social and cultural aspects of life in Pacific Island countries and the need to effectively use all relevant transport resources, given the relative scarcity of vessels to meet these demands. It was therefore agreed that cargo vessels should be permitted to carry passengers, subject to special consideration of the safety of the vessel and the conditions upon which a voyage with passengers should be permitted.
The application of the regulations to passenger ships necessitated higher standards of intact stability and the provision of life-saving and other safety equipment. […] However, it was agreed that, while such standards were appropriate for new, purpose-built passenger ships, there was a need to recognize in the regulations the reality that important trade, social and cultural activities would require that passengers should continue to be carried on board cargo ships. Accordingly a category of ‘cargo-passenger ship’ was defined that meets the basic standards of construction and equipment of cargo ships but requires higher standards in the area of intact stability, life-saving arrangements and communications equipment.
Despite progress having been made where non-convention ships are concerned, further advances along these lines appear to have stalled in the years since. However, disasters such as the 2009 sinking of the inter-island ferry Princess Ashika (then engaged on a Tongan domestic route) with the loss of 74 lives provide a reminder that shipping safety in the Pacific remains an important issue.
II. Special Rules Under SOLAS Art VII
While at a general level SOLAS represents international minimum standards, the agreement allows for a limited degree of flexibility, even where passenger vessel standards are concerned. The most important provision for the purposes of this discussion is Article VII (formerly Article VIII), headed “special rules drawn up by agreement”, which provides that:
When in accordance with the present Convention special rules are drawn up by agreement between all or some of the Contracting Governments, such rules shall be communicated to the Secretary-General of the Organization for circulation to all Contracting Governments.