4.2. Specific safety requirements relating to navigation in Greenlandic waters
Another element in the system of legal prophylaxis for Greenlandic waters is the Executive Order for Greenland on the Safe Navigation of Ships (Executive Order 1697/2015), which entered into force on 1 January 2016.(1) Executive Order no. 1697/2015 for Greenland on the safe navigation of ships, etc. (Bekendtgørelse for Grønland om skibes sikre sejlads m.v., bek.nr 1697(2015). The provision on the obligation on pilot services entered into force 01.07.2016, see Section 19, paragraph 2.The executive order applies to cargo ships with a gross tonnage of at least 150 tonnes and to ships carrying more than 12 passengers. For passenger ships carrying more than 250 passengers, specific strict rules apply. Warships and other state vessels which are not used for commercial service are not covered by the provisions in chapter 3 of the executive order concerning safety requirements.(2) Executive Order 1697/2015, Section 1.
Executive Order 1697/2015 provides some very specific regulation of navigation and thus supplements some of the regulations of the above-mentioned Polar Code and other relevant regulation, such as the Guidelines on Voyage Planning for Passenger Ships Operating in Remote Areas.(3) Guidelines on Voyage Planning for Passenger Ships Operating in Remote Areas, A 25/Res.999 (03.01. 2008) Executive Order 1697/2015 refers directly to UNCLOS’ right to innocent passage and the connected limitations of the coastal states’ right to regulate passage, however, its aim is to improve maritime safetety and thus give “effect to generally accepted international rules or standards”, and it is consequently also binding for foreign vessels.(4) See Executive Order no. 1697/2015, Section 1, paragraph 4 with footnote 1 and UNCLOS art. 21, subsection 2.Any violation of the obligations of Executive Order 1697/2015 is punishable under Greenlandic or Danish law and can result in a prison sentence of up to two years. As a legal entity, the shipping company can also be punished for violating Executive Order 1697/2015 with a fine.(5) Executive Order no. 1697/2015, Section 17 and 18. The maximum penalty of two years imprisonment is only applicable in situation where the violation of the Order 1697/2015 is dealt with under Danish criminal law. Executive Order no. 1697/2015, Section 18. The Greenlandic system of criminal justice does not operate with minimum/maximum penalties, see Kriminalloven (Criminal Code for Greenland) section 118 and 119.
Executive Order 1697/2015 divides Greenland into a northern and southern navigation zone. Passenger ships with over 250 passengers that navigate the northern navigation zone have to be at least “Baltic Ice Class 1C” or a similar ice class.(6) Executive Order1697/2015, § 3 and 13, stk.2. All ships navigating in Greenlandic waters must monitor the ice in an area where there is an ice presence. Vessel speed must be adjusted and an ice searchlight must be used in darkness. Ships must keep to a safe distance from icebergs.(7) Executive Order 1697/2015, § 4. When planning the ship’s voyage, the shipmaster must take into account a number of factors and details: the safety procedures of the ship’s safety management system related to navigation in Arctic waters; any limitations on the information contained in nautical charts and navigation aids; information about the extension and type of ice and icebergs in the vicinity of the planned voyage on an ongoing basis; statistical information about ice and temperatures from previous years; any possible places of refuge where the ship may be protected or receive assistance; any sea areas designated especially protected areas in the vicinity of the route; voyages in areas with limited search and rescue facilities.(8) Executive Order 1697/2016, § 5.
Navigation is prohibited in areas delimited in nautical charts by a dotted line with information about “numerous rock”. Navigation in areas labelled in the chart as “foul” or “unsurveyed” is only allowed if the ships follow previously used routes that the shipmaster has assessed would have a sufficient safety margin in relation to the ship’s greatest draught and width and the journey takes place in daylight and with “good visibility”.(9) Executive Order 1697/2016, § 6. When navigating the Southern West Coast near the capital Nuuk, passenger ships with over 250 passengers on board must follow the recommended routes.(10) Executive Order 1697/2016, § 14. Those passengers ships are also obliged to have a sufficient ice class, when navigating in areas with ice.(11) Executive Order 1697/2016, § 13.
Furthermore, Executive Order no. 1697/2015 establishes some quite specific obligations concerning the training of the crew.(12) Executive Order 1697/2015, § 16. In regard to voyage planning, Executive Order no. 1697/2015 requires that shipmasters and shipping companies document the possibility of assistance by other ships or SAR facilities within a reasonable period of time and with sufficient rescue capacity.(13) Executive Order 1697/2015, § 15. This requirement is interesting for at least two reasons. First, the issue of “pairing”, i.e. an obligation for cruise ships to navigate at a closer distance to another cruise ship, was one of the topics discussed under the negotiations of the Polar Code. However, such an obligation was not regulated in the Polar Code. Second, documenting that SAR facilities are within a reasonable period of time from the ship and have sufficient rescue capacity could be a complex issue. As illustrated below, the question of sufficient SAR facilities in and around Greenlandic waters is not easy to answer, which means it may be quite difficult to meet the Executive Order’s requirement.
According to Executive Order 1697/2015, Section 7, ships must have at least one person on board who possesses the necessary local knowledge of the water to be navigated. This individual must be qualified to navigate the ship concerned or have several years’ experience in navigating ships of similar size.
For passenger vessels carrying more than 250 passengers in the inner and outer territorial waters of Greenland, specific regulations concerning the obligatory use of pilotage came into force on 1st July 2016.(14) Executive Order 1697/2015, § 11, § 19, stk.2. This means that for larger passenger vessels navigating in and out of Greenlandic territorial waters it is mandatory to employ pilot services; in this context it may be noted that the Kingdom of Denmark currently only claims 3 nm as Greenlandic territorial waters and not 12 nm as permitted under UNCLOS art. 3, as claimed for the other parts of the Danish realm.(15)See Udenrigsministeriet, Søterritoriet: https://um.dk/da/udenrigspolitik/folkeretten/folkeretten-a/havret/. The pilot must be certificated to perform pilotage assignments in the area concerned. The vessel can get permission to navigate without a pilot, if the applicant documents the necessary qualifications and experience navigating in the Polar waters.(16) See Executive Order 1697/2015, § 11, stk.2.
In the case of passenger ships with more than 250 passengers, it is fair to assume that these ships are cruise ships whose sailing routes will include visits to destinations in Greenland and destinations outside Greenland.(17) There is only one major ferry service in Greenland operated by Arctic Umiaq Line with the ferry Sarfaq Ittuk which can accommodate 238 passengers and 23 crew, see Arctic Umiaq Linw: https://aul.gl/en/aboard/useful-information/. With regard to the practice of meeting the Executive Order’s requirements to have a pilot on board when navigating in Greenlandic waters, the pilot, or several if required, may sign on outside Greenland. This obviously depends on the individual ship’s sailing route, but usually it takes place in Reykjavik in Iceland.
The piloting company and its employees that carry out the piloting activities, must, in accordance with Greenlandic law, meet the formal requirements for qualifications that are a consequence of the Executive Order 1698/2015 on piloting.(18) Executive Order 1698/2015 for Greenland on piloting (Bekendtgørelse nr. 1698/2015 for Grønland om lodsning,). Section 5 of the Executive Order 1698/2015 concerns the requirement for local knowledge(19) Executive Order 1698/2015, section 8, paragraph 1. and states that applicants for piloting certificates must be able to document comprehensive knowledge of the piloting areas, including documentation of long-term navigation in Greenlandic waters. In addition, there must be sufficient knowledge of Greenland and Greenlandic waters. It is not further defined what is understood by knowledge of Greenland and Greenlandic conditions. For people who have not stayed or lived in Greenland for a long period of time, being able to meet the requirement for possessing local knowledge in accordance with Executive Order 1698/2015 and thus being able to carry out piloting in Greenlandic waters, must be considered difficult to achieve. With respect to being able to submit sufficient documentation to demonstrate the required local knowledge, the person in question must submit their discharge book, which must document in detail how their local knowledge has been acquired. This account must be included as an appendix with the employer’s declaration for the employment’s scope and nature.(20) Executive Order 1698/2015, section 8, paragraph 2.
It is the Danish Maritime Authority in Denmark which carries individual assessments of whether the requirement for documentation and local knowledge has been met.(21) Executive Order 1698/2015, section 8, paragraph 3.Currently there is only one provider of piloting services in Greenland.(22) Greenland Pilot Service: https://gps.gl.