The Polar Code is now in force: New regulations and new challenges
The Polar Code entered into force at the beginning of 2017. It is a major event for companies in the maritime industry navigating in Arctic and Antarctic regions.
In recent years, the need to introduce regulations governing shipping in polar regions became urgent as global warming opened up the prospect for a boom in maritime operations in the Arctic Ocean in particular.
What is the Polar Code?
The Polar Code is not an act of national law, nor is it the same as an international treaty whose entry into force depends on ratification procedures. The code was not developed from European regulations. So what is this document whose full name is the International Code for Ships Operating in Polar Waters?
There is no easy answer to that question, but it is necessary from a practical point of view. If we regard the Polar Code as a set of guidelines or best practice, compliance with its requirements would essentially be voluntary. It could not be effectively enforced, and sanctions could not be imposed for any violations of the code. This is not the nature of the Polar Code. It is founded on the aim of achieving mandatory observance of its requirements. The voluntary provisions of the Guidelines for Ships Operating in Polar Waters, adopted under the auspices of the International Maritime Organization, were already in force. If the Polar Code were to have that character, it would essentially just be a repetition of existing guidelines.
Yet if the Polar Code were to constitute binding law, obliging states to take certain actions and enabling enforcement of its provisions, the only way to achieve this would be to regard it as a form of international agreement. But that did not happen.
Without exploring here in all its intricacy the incredibly complex legal nature of the Polar Code, suffice it to say that observance of some of its provisions is obligatory, as amendments have been made to the International Convention for the Safety of Life at Sea (the SOLAS Convention) and the International Convention for the Prevention of Pollution from Ships (the MARPOL Convention), introducing an obligation to comply with the Polar Code. Thus if a country is a party to these conventions, these amendments entered into force in respect to that country even if the country was passive in the matter. This is because the procedure for amending these conventions assumes tacit acceptance of amendments if an objection is not asserted in the proper time and manner.
What problems is the Polar Code supposed to solve?
When considering the purposes served by the specific provisions of the Polar Code, the risk factors connected with shipping in the Arctic and Antarctic regions should be borne in mind. These include primarily the occurrence in polar regions of very low temperatures, and ice covering the hull and equipment of the ship, negatively affecting its stability, hindering navigation and functioning of safety systems. The risk factors also include long periods of darkness hindering the performance of basic functions and maintenance of equipment in proper technical condition, as well as proper response in the case of an emergency. Proximity to the poles affects the functioning of communications and navigation equipment. There are also major gaps in hydrographic data and navigation support infrastructure. On top of this there is the high ecological sensitivity of the polar environment. The Polar Code is designed to ensure that shipping in these regions is safe for humans and the environment.
Structure of the Polar Code
The code comprises an introduction and parts I-A, II-A, I-B and II-B, adopted pursuant to Resolution MSC.385(94) of the Maritime Safety Committee and Resolution MEPC.264(68) of the Marine Environment Protection Committee, supplemented by Resolution MSC.386(94) amending the SOLAS Convention and Resolution MEPC.265(68) amending the MARPOL Convention. The Polar Code is thus made up of four resolutions of various bodies of the International Maritime Organization, with varying legal consequences as discussed more extensively below.
The introduction contains definitions of terms used in the code as well as the geographical extent of application of the code. The code applies to all ships operating in polar waters of the northern and southern hemispheres, i.e. the Arctic area and the Antarctic area.
Part I is devoted to issues of crew safety in polar regions. Part II concerns prevention of pollution. As pointed out at the beginning, only some of the provisions of the Polar Code are mandatory. Thus each part of the code is divided into mandatory provisions (parts I-A and II-A respectively) and recommendations (parts I-B and II-B respectively).
New safety requirements
The mandatory safety measures (Part I-A) apply to new ships from 1 January 2017. Ships constructed before that date must achieve compliance with the relevant requirements from 1 January 2018, before their first intermediate survey or survey for renewal of documents, whichever is earlier.
These requirements mainly include an obligation to hold a Polar Ship Certificate confirming the ship’s fitness to operate in polar waters. This obligation applies to all ships covered by the code. The certificate must be issued in the form specified in an annex to the code and where possible should address the method applied for assessment of operational capabilities and the limitations arising under separate guidelines. These guidelines include, for example, the Guidance on Methodologies for Assessing Operational Capabilities and Limitations in Ice (MSC.1/Circ.1519 of 6 June 2016), introducing the Polar Operational Limit Assessment Risk Indexing System (POLARIS). These guidelines will be updated periodically based on the experience going forward.
The second mandatory document (in addition to the certificate) which should be found onboard the ship is the Polar Water Operational Manual (PWOM). Its purpose is to provide the ship’s owner, operator, master and crew with sufficient information regarding the ship’s operational capabilities in polar waters and limitations results from the ship’s construction. First and foremost, the manual should include or refer to specific procedures to be followed in normal operations, and in the event of incidents in polar waters, as well as when the ship encounters conditions exceeding its operational capabilities.
Further sections of the safety portion of the code address the ship’s structure, to ensure its integrity and stability under difficult polar conditions, proper functioning of the ship’s equipment, fire safety, and lifesaving appliances. This section also provides rules for voyage planning and crew training.
Pollution prevention obligations
The environmental protection obligations (Part II-A) are highly complex. In most instances, from 1 January 2017 they apply to all ships operating in polar waters. But in some cases application of the code is limited to specific units, in order to ensure consistency with other environmental protection requirements set forth in the MARPOL Convention.
Part II-A of the code concerning environmental protection sets forth more detailed and concrete requirements than the safety sections discussed above. For example, the code prohibits any discharge into the sea of oil or oily mixtures (except for clean ballast water), and also provides detailed requirements for the construction of ships and oil tanks after 1 January 2017. Any discharge into the sea of noxious liquid substances or mixtures containing such substances is prohibited.
The code also contains detailed provisions on prevention of pollution by sewage from ships, although discharge of sewage in polar waters is not completely banned. It is permissible only in exceptional situations, upon fulfilment of the requirements set forth in the code for the minimum distance between the ship and ice cover, and the presence on the ship of appropriate sewage treatment equipment. The code absolutely prohibits the discharge of sewage into the sea from category A and B ships and passenger ships constructed on or after 1 January 2017, unless the ship operates an approved sewage treatment plant. Discharge of garbage from ships is regulated similarly. Essentially, this is permitted under the conditions set forth in the MARPOL Convention, but adding several additional reservations, particularly concerning discharge of food waste, animal carcasses and cargo residues.
Three categories of ships
As mentioned, some of the requirements in the code apply to ships belonging to certain categories. The Polar Code defines three categories of ships in terms of their operational capabilities in polar areas. Category A includes ships designed for operation in polar waters in at least medium first-year ice, which may include old ice inclusions. Category B covers ships not included in Category A, designed for operation in polar waters in at least thin first-year ice, which may include old ice inclusions. A Category C ship is a ship designed to operate in open water or in ice conditions less severe than those included in categories A and B.
The Polar Code in the Polish legal system
The Republic of Poland has ratified both the MARPOL Convention and the SOLAS Convention. At the end of last year, resolutions were published in the Journal of Laws introducing the obligation to comply with the Polar Code (Resolution MEPC.265(68), Dz.U. 2016 item 1979, and Resolution MSC.386(94), Dz.U. 2016 item 2029). These resolutions did not contain the text of the Polar Code itself, but only a cross-reference to the code. The text of the Polar Code is available at the website of the International Maritime Organization (www.imo.org).
Dominik Wałkowski, Environment practice, Wardyński & Partners
