3.1. The International Code for Ships Operating in Polar Waters (Polar Code)
The Polar Code’s overall aim is to increase maritime safety for ships and passengers and to minimise the risk of pollution in polar waters where this is not sufficiently met by the existing regulations, see in particular article 1 of the Polar Code. The Polar Code is a legal supplement to the existing legal regime, rather than a replacement/termination of existing rules. The Polar Code’s application is much more comprehensive and stringent compared to the mentioned guidelines from 2002 and 2010. The difference between the recommendations in the guidelines and regulations in the Polar Code is not just a question of the mandatory nature of the regulations. The recommendations in the guidelines from 2002 are not comprehensive and deal with subjects like waste plants, communication and guidelines relating to navigation and environmental risk.(1) MSC/Circ. 1056, MEPC/Circ. 399 (2002), section 16.1. To a large degree, the 2010 guidelines are a repeat of the recommendations given in the 2002 guidelines. In contrast, the Polar Code is much more comprehensive in its requirements. The Polar Code covers two kinds of regulation: mandatory regulations and recommendations which are of a non-binding character.(2) Such recommendations can over time be regarded as standard practice.
The Polar Code is devised by the IMO’s specialist committees for safety (MSC)(3) Maritime Safety Committee, cf. IMO convention Part VII. and pollution MEPC).(4) Marine Environment Protection Committee, cf. IMO convention Part IX. To ensure international adherence, the Polar Code is implemented through two existing sets of regulations, the SOLAS convention(5) SOLAS: 1974 International Convention for the Safety and Life at Sea. in relation to the part that deals with safety, and the MARPOL Convention(6) MARPOL: 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 relating thereto as amended by the 1997 Protocol. in relation to the part that deals with pollution emissions. The Polar Code was adopted in relation to implicit adoption procedure(7) See further information by IMO http://www.imo.org/en/About/Conventions/Pages/Home.aspx. and came into effect at the beginning of 2017 for ships built after this date. Ships that were built before this date have to meet the requirements on their first service. In legal terms, the Polar Code has the status of lex specialis in relation to the general law of the sea, since the Polar Code’s geographical area of application is limited to Polar waters, meaning the waters of the Arctic and Antarctica. Furthermore, the Polar Code is solely taking into consideration questions relating to the environment and safety. Other questions of the law of the sea, as for example the division of jurisdiction of the law of the sea between flag states, port states and coastal states, continue to be derived from UNCLOS and are not affected by the Polar Code.
In pursuance of the Polar Code, the shipping industry is subjected to obligations and expenses in the form of regulations that relate to ship design, ship construction and equipment and requirements relating to the crew’s training and qualifications. The Polar Code’s methodology consists of two separate chapters that deal with maritime safety and measures for the prevention of pollution, respectively. Each chapter is divided into two separate sections. The first section contains mandatory requirements and the second section contains recommendations. In particular, it is the Polar Code’s mandatory regulations that differentiate it from earlier guidelines in this area.
To ensure that ships are approved to navigate in the special conditions of Polar waters, they must be classified. The two parameters that confer value in the establishment of the classification, are the scope of the expected activity, compared to the risk factor. Therefore, ships are assigned to three different categories – A, B and C. Category A ships are designed for operation in polar waters at least in medium first-year ice, which may include old ice inclusions. Category B ships, which are not included in category A, are designed for operation in polar waters in at least thin first-year ice, which may include old ice inclusions. Category C ships are designed to operate in open water or in ice conditions less severe than those included in Categories A and B.(8) For a more detailed explanation of the technical terminology and types of ice, see the Polar Code, Introduction, Section 2 Definitions. See also further information by IMO http://www.imo.org/en/MediaCentre/HotTopics/polar/Pages/default.aspx. All ships covered by the Polar Code’s classification must have a Polar Ship Certificate, which is issued after an inspection. In the shipping industry, certification is usually carried out by private classification societies.(9) See Kristina Maria Siig, Private classification societies acting on behalf of the regulatory authorities within the shipping industry, SIMPLY vol. 482 (2016). In other words, a task that is normally carried out by a public sector regulatory authority has been delegated to a private entity.
An example of the implementation of the Polar Code’s provisions is the Executive Order no 169/2009 on the use of ice searchlights, which ships must comply with when navigating in darkness.(10) Executive Order no. 169/2009 on technical regulations relating to the use of ice searchlights in Greenlandic water (bekendtgørelse nr 169/2009 om teknisk forskrift om anvendelse af isprojektører ved sejlads i grønlandsk farvand). The executive order applies to Greenlandic, Danish and foreign cargo and passenger ships navigating in Greenlandic waters.(11) Executive Order no 169/2009, Section 2, paragraph 2 and paragraph 3. The public law requirements on the use of ice searchlights applies to both types of ships if the ships have a gross tonnage of 150 or greater. Conversely, if a ship has a gross tonnage of under 150 or is another type of ship, for example a fishing vessel, it is not subject to the requirement that ice searchlights must be used in Greenlandic waters. The decision not to use ice searchlights may be seen as an acceptance of the risk involved, but this might be acceptable with smaller local vessels where the master and crew generally have an extensive understanding of local conditions. Any breach of the Executive Order will result in a fine or imprisonment.(12) Executive Order no 169/2009, Section 6.