Potential port closure
Rena's safety issues
Early on October 5 2011 the MV Rena - a Liberian-flagged, Greek-owned, 235-metre container vessel - struck the Astrolabe Reef off the coast of Tauranga, a port on the North Island of New Zealand. The vessel was heading to Tauranga from another New Zealand port and was due to continue to an overseas port. It was carrying around 1,400 containers and an estimated 1,700 tonnes of fuel.
Since it struck the reef, the Rena has remained stuck and is reported to have leaked more than 350 tonnes of oil into the sea. Maritime New Zealand - the crown entity with responsibility for maritime safety - reports that the ship's fuel tanks are intact; the oil is escaping from the duct keel or an aft tank. Onshore winds have spread the oil along the New Zealand coastline. Volunteers have been cleaning the oil from the Tauranga beaches and by October 17 2011 had collected more than 600 tonnes of solid waste. Around 5,500 people have reportedly volunteered to help with the clean-up, but the cost of the operation has already risen to millions of dollars.
The Rena is considered a hazardous ship by Maritime New Zealand. The director of the authority has issued the shipowner, agent, master and salvage operator with notices and issued instructions that Maritime New Zealand be kept informed of all salvage operations. The notices also instruct these parties to comply with the directions of the national on-scene commander and to permit the commander to carry out such inspections as he considers appropriate.
The shipowner has appointed Svitzer as salvor of the incident. According to Maritime New Zealand, the focus of the salvage operation has been to remove oil from the vessel to minimise the further environmental impact. Fuel has been pumped from the Rena to a bunker barge; however, unfavourable weather conditions and minor damage to the barge have delayed the salvage operation. There is believed to be 1,300 tonnes of oil on board. While the front part of the vessel is stuck fast on the reef, the stern is floating at high tide and is moving with the swell. This has caused significant stress on the vessel, which is suffering substantial structural failure, although it remains in one piece. A crack is clearly visible in one of the cargo holds, and there is concern that the stern may break away and sink. The salvor has mobilised three tugs with the aim of either holding the stern on the reef while further efforts are made to remove the oil, or towing the stern to shallow water to remove the oil.
Most of the 1,400 containers, including several containing hazardous substances, remain onboard the vessel. However, there are reports that 88 containers, including at least one that contains dangerous goods, have fallen overboard and are adrift or have washed up on nearby beaches. Further containers are expected to fall from the vessel owing to the bad weather and the vessel's heavy list. The crew has been evacuated from the vessel as a precautionary measure.
The Port of Tauranga continues to ship and receive cargo, despite the threat of more containers falling into the sea. According to its chief executive, the port is prepared to shut temporarily should there be a safety risk; this would force major exporters to redirect their cargo to other ports. Shipping traffic has been rerouted, as an exclusion zone has been imposed around the Rena.
Many questions relating to the vessel's safety remain unclear. There have been reports that the Rena had safety problems before it ran aground. The vessel was detained in Australia in September 2011 and a warning was given about the ship's safety record during an inspection at the New Zealand port of Bluff. It has also been claimed that the vessel came close to hitting an oil tanker near Napier earlier in October 2011. Among other things, it has been alleged that the vessel did not have proper navigation charts and that its safety management system was not working as effectively as it should have been. However, the shipowner maintains that the Rena had no such problems, that all technical issues were rectified before the vessel left Australia and that it was cleared for operation in New Zealand waters in the inspection at Bluff.
There has been much speculation over the cause of the grounding, which occurred during calm conditions. Investigations are continuing and no firm conclusions have yet been drawn.
The captain of the Rena has interim name suppression, but is known to be a 44-year-old Filipino man. He is being held in custody and has been charged under Section 65 of the Maritime Transport Act 1994 for operating a vessel in a manner causing unnecessary danger or risk to persons or property. The charge carries a maximum penalty of NZ$10,000 for an individual or a maximum term of imprisonment of 12 months. The captain is due to reappear in court on October 19 2011, when further charges may be laid.
A second crewman has also been arrested and charged. He was in charge of the watch when the ship ran into the reef at full speed and has also been charged under Section 65. According to the environment minister, more charges are likely.
New Zealand has ratified both the International Convention on Civil Liability for Oil Pollution Damage 1969, which governs liability for oil pollution damage from vessels carrying oil in bulk, and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 (including the 1992 protocol). However, it has not ratified the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 - known as the Bunkers Convention - which relates to oil pollution damage from vessels that are not carrying oil in bulk.
The two primary New Zealand statutes that impose civil and criminal liability for pollution damage are the Maritime Transport Act and the Resource Management Act. The Maritime Transport Act implements the Convention on Civil Liability and to some extent also corresponds to the intention of the Bunkers Convention, although the terms of the convention have not been enacted.
The Maritime Transport Act also imposes compulsory insurance requirements on ships with a gross tonnage of over 400 tonnes which enter New Zealand waters - this covers bunker oil spills. It allows third parties to enforce a claim directly against an insurer. The liability regime under the Maritime Transport Act differs depending on whether the vessel is carrying oil in bulk and is registered in, or is flagged to, a state that has ratified the Convention on Civil Liability.
The Maritime Transport Act applies within New Zealand's exclusive economic zone and imposes strict liability for pollution damage on the owner of a vessel in exchange for the right to limit liability by reference to the tonnage of the vessel. The right to limit liability is lost if damage occurs as a result of a personal act or omission of the liable party, if the latter intended to cause such damage or was reckless as to whether such damage would probably occur.
For further information on this topic please contact Felicity Monteiro or Kerryn Webster at Wilson Harle by telephone (+64 9 915 5700), fax (+64 9 915 5701) or email ([email protected] or [email protected]).