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Ice pilotage
Material posted: Gornova Anna M.Publication date: 06-11-2019

Legal support of activities of pilot organizations in General is in urgent need of reform, because it's a glitch allows you to manipulate the law and allow Russian ports in the pilot work of private companies, the objectives of which is expressly contrary to the purposes of pilotage specified in the merchant shipping Code of the Russian Federation.

But the greater problem there is another small part which requires urgent attention and can be a huge impact, that's the ice pilotage in the waters of the Northern sea route. It is not actually settled, although it is of great importance for environmental protection of our Arctic territories from the impact of the international chamber of shipping and is one of the international legal obligations of Russia.

V. egorkin, state marine pilot since 1974, pilot commander of the SPb since 1992, President of the Association of sea pilots of Russia since 1995, honored worker of transport of the Russian Federation, candidate of law.N.

 

Legal support of activities of pilot organizations in General is in urgent need of reform, because it's a glitch allows you to manipulate the law and allow Russian ports in the pilot work of private companies, the objectives of which is expressly contrary to the purposes of pilotage specified in the merchant shipping Code of the Russian Federation.

But the greater problem there is another small part which requires urgent attention and can be a huge impact, that's the ice pilotage in the waters of the Northern sea route. It is not actually settled, although it is of great importance for environmental protection of our Arctic territories from the impact of the international chamber of shipping and is one of the international legal obligations of Russia.

V. egorkin, state marine pilot since 1974, pilot commander of the SPb since 1992, President of the Association of sea pilots of Russia since 1995, honored worker of transport of the Russian Federation, candidate of law.N.

 

Russia's interests in the Arctic

The complexity of the solution of our international problems in the Arctic is that the Arctic ocean is primarily an ocean, and its legal status is defined by the UN Convention on the law of the sea 1982. State of the coast which are directly washed by the waters of the Arctic ocean include the Arctic Council, where each seeks to defend its position. Each of the countries involved in resolving disputes on territorial issues in the Arctic, pursuing their own interests, but they quickly adopted a common position in the question of internationalization of the Northern sea route, control of which belongs to Russia.

All tensions in the world are concentrated where the oil is extracted, natural gas, and the Arctic, with its large supply of hydrocarbons, according to weather experts, could be the next region where the interests of leading countries of the world. Not all countries are happy with the return of Russia to a full-scale presence in the Arctic, so Russia ratified the Convention on the law of the sea 1982, internally uses its rules and regulations to protect the Arctic national interests.

The concentration in the Arctic zone the most important of Russia's national interests (defence, economic, geopolitical, scientific and environmental) demands in her direct Federal control to the extent possible.

The Northern sea route (NSR) has a legal regime a national transport communications in respect of which Russia has exclusive rights as a coastal state, and for Chukotka, Arctic Islands, and several settlements along the coastline of the Krasnoyarsk region and Tyumen region, sea transport is the only means of ensuring mass transport of goods.

The use of the Northern sea route – it is a question not only economic, but also geopolitical, the real basis of retention of the marine positions in the Arctic region, conquered by Russia in the last two centuries. The crucial role of Russia in this sea area does not suit other countries of the Arctic region who insist to make the Northern sea route for international commercial route and to abandon the compulsory escort Russian pilots and icebreakers.

"Under the waters of the Northern sea route means a stretch of water adjacent to the Northern coast of the Russian Federation, covering internal waters, territorial sea, contiguous zone and exclusive economic zone of the Russian Federation and the limited from the East line of Maritime delimitation with the United States and the parallel Cape Dezhnev in the Bering Strait, West Meridian of Cape zhelaniya to the Novaya Zemlya archipelago, Eastern coastline of Novaya Zemlya archipelago and the Western borders of the Straits of Matochkin Shar, Kara Gate, Yugorsky Shar" (article 5.1 KTM).

"Swimming in the waters of the Northern sea route, the historical national transport communications of the Russian Federation, is carried out in accordance with the generally recognized principles and norms of international law, international treaties of the Russian Federation, the present Federal law, other Federal laws and issued in accordance with them other normative legal acts" (article 14 of the Federal law from 31/07-1998 n 155-FZ).

The water area of the NSR is a unique and vulnerable aquatic ecosystem, which is affected by international shipping. "Particularly severe climatic conditions and the presence of ice covering such areas for most of the year, create obstacles, or increased danger for shipping and pollution of the marine environment could cause grave harm to the ecological balance or irreversibly disturb it." This allows RF "in order to prevent, reduce and control pollution of the environment to adopt Federal laws and other normative legal acts and to enforce them" (V. 32 FZ dated 17/12-1998 n 191-FZ).

No country in the world have never invested so much money, resources, lives and destinies in the discovery, exploitation and development of Maritime transportation routes in such harsh conditions. Ensuring Russian interests in the Arctic is a priority, and it has been repeatedly emphasized at the highest level. The marine doctrine of the Russian Federation for the period until 2020 defines the need for "ensuring the national interests of the Russian Federation in relation to the Northern sea route, centralized state management of this transport system... consolidate the efforts and resources of the Federal center and the subjects of the Russian Federation for the development of Arctic shipping... and implementation of a Northern delivery".

In accordance with paragraph 12 of the "strategy of development of the Arctic zone of the Russian Federation for the period till 2020" dated 20/02-2013 "for the purpose of modernization and development of infrastructure of the Arctic transport system, ensuring the preservation of the Northern sea route as a national unified transport route of the Russian Federation, provided: d) improving the regulatory framework of the Russian Federation regarding state regulation of navigation in the waters of the Northern sea route, ensuring its security; d) improving the organizational structure of the management and safety of navigation in the Arctic zone of the Russian Federation; e) the creation and development of complex system of safety of Arctic shipping, including navigational and hydrographic, hydrometeorological, ice-breaking and other types of support; C) state support for the implementation of the Northern delivery of goods and export of goods in transport schemes "river – sea".

 

Rules and regulations

However, despite the importance, uniqueness and vulnerability of the Northern sea route it has so far not solved the problem of formation of normative-legal base providing ice pilotage services corresponding to the national security interests of Russia. The current legal framework of Arctic Maritime ice pilot wires is degraded by the echo system, created in Soviet times. With the advent of private ownership in the field of merchant shipping, Russia has undergone fundamental change of the situation that are not reflected in the regulatory framework.

In the extreme conditions of the Arctic region is of particular importance to ensure the safety of SMP it becomes "centralized state management of this transport system" along with the high qualification of working personnel on the track. The services of adequately qualified and licensed pilots are ice contribution to improving Maritime safety, preventing pollution of the environment in our Arctic and on the Northern sea route, as required by international law.

From 1 January 2017 entered into force on the Polar code governing many aspects of the work of the Navy in the Arctic, which was adopted by the International Maritime organization (IMO) to regulate Arctic shipping, which demonstrated the international community's attention to the Arctic zone and serious work to ensure the safety of navigation and environmental security in the region. This document is an important norm of international law, mandatory under the conventions of SOLAS, MARPOL, and we're required to consider when developing its regulatory framework governing navigation in the waters of the Northern sea route.

For navigation in ice conditions of the Polar code requires (Chapter 12) "ensure that ships operating in polar waters, appropriately qualified staff" (see paragraph 12.1). The vessel's administration may authorize the assistance of other persons (i.e. ice pilots), provided that "the Board must be a sufficient number of individuals meet the relevant training requirements for polar waters, for the execution of all graphics Watchkeeping (section 12.3.2.2)". There are also other requirements for such "other persons" – the ice pilots.

The Rules of the ice pilotage in the waters of the SMP (section IV "Rules of navigation in the water area of the Northern sea route" approved by Order of the Russian Federation from MT 17/01-2013, No. 7), to be followed by the ship's captain and ice pilot in the course of ice pilotage, the provisions of this rules of international law not taken into account.

Also in the Rules of the ice pilotage in violation of Russian law does not take into account the requirements of the 6th Chapter of KTM of the Russian Federation, which governs the activities of marine pilots. Violated article 85 (pilotage), 86 (purpose pilotage), 87 (Maritime pilots), 88 (state supervision over the activities of pilot organizations), 92 (implementation of a pilot duties of a public character), 93 (pilot certificate), and other articles of this Chapter.

Are not reflected in the applicable Rules of the ice pilotage and regulatory requirements of the "Regulations on sea pilots of the Russian Federation", approved by Order of Ministry of transport of Russia from 22/07-2008, No. 112, regarding: citizenship, health, education, training and professional development, issue certificates, rights and obligations of Maritime pilots when exercising pilotage, etc., which are in accordance with the Russian legislation apply fully to the ice pilots. In fact, the paragraph 33 of these Rules (9 lines) substitute "regulations on sea pilots of the Russian Federation" (18 pages with annexes).

From this it follows that the Rules of the ice pilotage of ships, require cancellation and full audit, as they are contrary to applicable law or partially overlap with them. According to sources, this work seems to have begun, but if so, this effort began late in five years and privately, without bringing to discussion a wide range of specialists, which can lead to the same result. In the current geopolitical situation of the Arctic hub other countries are using any of our flaws for their own benefit and will not be "tolerant" to Russian national interests without the use of all forms of protection, demonstration of these interests and their legal support.

About prospects of development of Arctic navigation in 2013, said IMO Secretary-General koji Sekimizu: "We do expect the volume of traffic along the NSR will increase significantly in the coming years, and it is therefore important that the international standards adopted by IMO, were used for each vessel, running on SMP. I am convinced that the IMO standards will ensure the maintenance of safety of navigation on the NSR".

In 2017, the Secretary General of IMO Chitac lim in an interview, said: "I Expect that the Russian government will continue to make a significant contribution to safety at sea, environmental protection and efficiency of shipping along the Northern sea route". In 2019, the international Maritime organization (IMO) has granted observer status in the Arctic Council, which will allow the IMO Council to work more closely with the Arctic Council on issues related to ensuring security at sea and protection of the marine environment in the Arctic region.

In the Rules of navigation in the water area of the Northern sea route there is nothing on the procedure of issuance of certificates ice pilots SMP, however, the Administration of the Northern sea route, which organizes the ice pilotage in the water area of the NSR (article 5.1 of KTM the Russian Federation), in 2013 issued 26 certificates on the right of ice pilotage. Now in this important issue in this ecologically fragile region, as the waters to our Arctic, in violation of the legislation of the Russian Federation is laid by lack of control of ice pilotage.

Of the five organizations providing ice pilotage in the Northern sea route, which are presented on the official website of the Administration of the Northern sea route, two are private. The main purpose of these private companies is not a "safety of navigation of ships and protection of the marine environment" (article 86 KTM) and profit from the provision of pilotage services (article 2, article 50 of the civil code).

They objectively can't and won't, most likely, control of ice pilotage, and their pilots, but on the contrary – initially offer services for the protection of the interests of their customers in their possible dispute with the authorities. In short, nothing but business.

– OOO "Ice pilots", the only founder of MOO "Association of sea captains" (AMC), member of the International Federation of associations of sea captains (IFSMA), has a wide range of services in various fields of Maritime business: ice pilotage in the White, Barents and Arctic seas all types of vessels; ship Agency in the ports of the Arctic region; to conduct all types of survey works; freight forwarding; consulting services in the protection of the interests of the vessel in the interaction with the port and other local authorities (!); organization of loading-unloading works (from their website).

– ANO "the Guild of polar pilots", formally a non-profit organization, which has only one founder is a private commercial company of the JSC "SS BALTIC". In fact, it is the transformation of ANO "the Guild of pilots Kandalaksha Bay" with the same actors and the same objective risk-free business for the pilotage function. In this company a pilot case is also combined with other activities: "wholesale trade" (except bikes!) and "marketing research," and its headmistress (given the potential for confusion in the names) runs an educational company, torn between Moscow and St. Petersburg.

 

The duties of a public character

In view of the particular vulnerability of Arctic nature the development of merchant shipping in the region, without taking all possible measures for its protection and the organization the greatest possible control over the courts, can lead to disastrous consequences. In this regard, of particular importance is the implementation of a pilot duties of a public character. State sea pilots of the Soviet Union, for example, the semi-official charged with even some features for the protection of the state border.

In terms of Arctic shipping during the ice pilotage the pilot hours in port, and is held for weeks on the ship and a long time is the only representative of the state on Board a foreign vessel. In such circumstances, it is very important that in addition to its primary responsibilities: assisting the captain in difficult conditions of ice navigation, – he has the authority and responsibility to monitor "the execution of captain of a ship, pilotage which he accomplishes, the rules of navigation ships and rules for the prevention of pollution from ships by oil, noxious substances, sewage or garbage" (article 92 CMW).

But this is especially important for the Arctic, the function can only be performed state the pilot. Who will allow ice to the pilot of a private company, for which the goal is profit, to defend the interests of the Russian state in a foreign ship, a transaction which the owner of the company won in the competition? The question, of course, rhetorical. One brave man can, and show integrity, but then you get out of here "without pay" yourself a lesson and as a warning to others.

Today in the legal support of the pilot cases there is a pronounced disproportion of state responsibility for the organization of a pilot security in its waters and irresponsibility of private pilotage companies for damages due to pilot error. While pilotage services are rendered by private companies, this imbalance cannot be corrected.

Despite the fact that: the Northern sea route is federally owned; state management is the basis of preservation of the NSR as a national communications of Russia in the Arctic; SMP is subsidized from the Federal budget, as it is crucial for the development of our energy resources on the continental shelf and for exportation of energy resources that are mined on the land part of the Arctic; in solving problems of the Arctic is Federal policy based on state protectionism – the services of the ice pilotage in the waters of the SMP can provide any organization (including those in foreign ownership) and citizens.

Arctic marine transport corridor belongs to the vitally important transport communications of the country and its infrastructure will be subsidized by the state, and most significantly in the period of (recovery). The questions arise: how best to use subsidies, how to combine with subsidies for SMP task of ensuring the availability of commercial services, ice pilots, and how to determine the amount of payment of the ice pilotage of the vessel "based on the volume of actually rendered services" – if pilotage organizations offering the services of ice pilots, required nothing more than a mobile phone and possibly the computer despite the fact that she is not responsible for damages due to the fault of the pilot (KTM of the Russian Federation of article 102, paragraph 1, item 2; article 103; 104, p.1).

The danger of navigation in the water area of the Northern sea route is not only about size, condition of the vessel, type of cargo and the environment, which operates the vessel, but also to a considerable extent with the qualification of the crew. The use on vessels under flags of convenience, less-skilled/skilled, low-wage crews from third world countries increases the risk of Maritime accidents and environmental damage, and to maintain an adequate level of safety of navigation requires the use of qualified, responsible pilots and solid legal support for their work.

 

The pilots of the open sea

Similar conditions of the ice pilotage in the winter there and in the Baltic. For many years the services of a pilot open sea (ice pilots) in the Baltic sea, including in our territorial waters and our exclusive economic zone without any regulation have any organization, even Russian and non-Russian citizens. Violated the same article of Chapter VI of the rules of the Russian Federation, which are mentioned above, as well as the Resolution of the International Maritime organization, IMO, which is our country.

Services of ice pilots (pilots of the open sea) in the Baltic sea is also not regulated and industry Department not controlled, although the main amount of vessels of large dimensions with hazardous cargo going to/from the Russian ports and many tankers use pilotage services on the open sea of unknown status called "ice advisors", "superintendents", etc.

The last normative document in this field was the order of the MMF of the USSR from 04/01-1981 No. 2 "On approval of regulations on the state sea pilots of the open Baltic sea", published on the basis of IMO Resolution A. 480 (XII) of 19 November 1981 (replaced by IMO Resolution A. 1081(28) from 04/12-2013). The order issued "in order to improve Maritime safety in the Baltic sea basin and in accordance with the Protocol of the Conference pilotage authorities of the Baltic sea from 22/10-1979" (preamble). De jure, the order is valid (the order of the MT of the Russian Federation from 12/02-1999, № 6, item 7 of the Annex No. 2), but de facto he is no longer executed.

This flaw has turned a major contributor to the protection of the environment and security of merchant shipping in the area of international responsibility of Russia in a super-profitable "business", which involved Russian "providers of pilot services" (our private pilotage company), foreign citizens and just any person.

The unresolved activities of pilots of the open sea in the Baltic sea does not prevent them to earn not less than 20 million rubles a year (very rough estimates) on the safety of navigation, but does not allow to arrange the provision of these services at the state level. In violation of international treaties Russia the activities of the pilots of the open Baltic sea, we got completely out of control state.

The Baltic sea area, like the Arctic, is a unique globally vulnerable aquatic ecosystem, which is affected by international shipping. The IMO has recognized the Baltic sea as a "particularly sensitive sea area" that includes special protective measures to control international Maritime activities. In addition, the Baltic sea is defined as "special areas" in a number of applications to the International Convention for the prevention of pollution from ships (MARPOL-73/78), which means the presentation of more stringent requirements for the operation of Maritime transport in the area.

Resolution А1081(28), adopted the IMO 04/12-2013 "encourages all member governments to take all necessary and appropriate measures to encourage the captains and owners of ships entitled to fly the flag of their country, while passing in transit through the Baltic sea... used the services of only properly qualified pilots on the open sea with a license" (p.1).

This IMO Resolution "invites governments of coastal States of the Baltic sea: to provide information on how can be obtained the services of properly qualified pilots on the open sea with a license (section 2.1); take all necessary and appropriate measures to ensure that the pilotage service had been provided only appropriately qualified pilots licensed (clause 2.2); to take all necessary and appropriate measures to ensure that properly qualified pilots on the open sea had the certificate of the pilot of the high seas... (paragraph 2.3)".

Pilotage authorities of the coastal countries of the Baltic sea, including the USSR, aware of the particular vulnerability of its marine environment and the importance it represents to the people living on its coast; taking into account the difficulties posed by sailing the Baltic sea area due to narrow Straits, shallow waters, groups of Islands and ice in winter; and the increase of shipping traffic, especially the increasing oil transportation in 1979 at the conference of the pilotage authorities of the Baltic sea States, held from 18 to 22 October in Hamburg has adopted a regulation on minimum qualification requirements and working conditions of pilots of the open Baltic sea.

The Board of pilotage authorities of the Baltic sea (Baltic Pilotage Authorities Commission VRAS), in which we currently participate, does not approve of making money the ice pilots from Canada, the other "ice advisors" status unknown and believes that the waters of the Baltic sea should only work properly organized national pilots of the coastal States. However, IMO Resolution А1081(28) our country, it turns out, is not performed.

The solution of the above problems while maintaining the commercial purpose of rendering pilotage services by the private sector will take a long time, will require huge amounts of legal work, but in the end, says the global experience does not guarantee successful solution. While all the above issues, along with the main – organization of stable quality of the pilot ensure in all sea ports of Russia, – are easily and quickly solved by the passage of the bill creating a state pilotage service of Russia.

In accordance with the UN Convention on the law of the sea 1982 (article 234): "Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year, create obstacles, or increased danger for shipping and pollution of the marine environment could cause major harm to the ecological balance or irreversibly disturb it," and it is fully compliant with article 32 of the Law on the exclusive economic zone of the Russian Federation.

Moreover, "States are responsible for the fulfilment of their international obligations concerning the protection and preservation of the marine environment. They are responsible in accordance with international law" (ibid., clause 1 of article 235).

 

Conclusion

Given the above, modern experience IMPA/EMPA/BRAS, developments of the Soviet era, experiences of the Association of sea pilots of Russia's perestroika period and the negative experience of the competitive struggle of private pilotage companies for "market pilot services" are currently required:

– to prepare the regulations on the ice pilot for the Northern sea route (on the activities of the pilots of the open sea, territorial sea and economic zone of Russia) or make additional corrections to the "regulations on sea pilots of the Russian Federation";

– undo and completely rework section IV "Rules of navigation in the water area of the Northern sea route";

– the function of providing pilotage in the waters of the Northern sea route to consolidate the unified state pilotage organization of Russia, as another method to control the operation of the ice pilots and generally pilots of the open sea within the territorial waters of Russia;

– to accelerate the adoption of amendments to the rules of the Russian Federation on the establishment of a unified national state pilotage service, which will ensure the stable operation of all pilots in the areas of obligatory and optional pilotage, including all the organizational problems of ice pilotage, and solve the problem of misuse of pilotage.

 

Source:
Maritime news of Russia No. 11 (2019)
http://www.morvesti.ru/analitics/detail.php?ID=81021


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