WHO'S RESPONSIBLE? WITH THE MULTI-NATIONAL NATURE OF MERCHANT SHIPPING, WHO'S ON THE HOOK WHEN THERE'S A DISASTER AT SEA? - pages 10-15 - UFDC ...
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Starshell
A little light on what’s going on!
A publication for the Naval Assocation of Canada • Winter 2019, No. 85
WHO’S RESPONSIBLE?
WITH THE MULTI-NATIONAL NATURE OF MERCHANT SHIPPING,
WHO’S ON THE HOOK WHEN THERE’S A DISASTER AT SEA?
pages 10-15
2 | Starshell Winter 2019
Starshell From the Editor
ISSN-1191-1166
National Magazine of the Naval Association of Canada Carmel Ecker
Magazine Nationale de L’Association Navale du Canada
www.navalassoc.ca
Seeing the broader picture
What a jam-packed issue this is! Our writers have given you
plenty to ponder as you wait for the winter cold to give way to
the vibrant colours of early spring.
PATRON: HRH THE PRINCE PHILIP, DUKE OF EDINBURGH
Where last issue was dominated by internal NAC happenings,
HONORARY PRESIDENT: H. R. (HARRY) STEELE
this issue we look at the broader picture, both nationally and
HONORARY COUNSEL: DONALD GRANT
internationally.
OFFICERS OF THE CORPORATION Dr. Aldo Chircop, professor of Law at the Schulich School of
PRESIDENT: Bill Conconi Law and an expert on marine and environmental law, enlightens
VICE PRESIDENT: Barry Walker us about the quandry of who is responsible for cleaning up and
TREASURER: King Wan paying for marine environmental diasters due to shipping acci-
SECRETARY (EXECUTIVE DIRECTOR): David Soule (ex-officio) dents. While not specifically a navy issue, this maritime challenge
is in line with NAC’s aim to eliminate maritime blindness among
COMMITTEE CHAIRS
Canadians. As a country that is surrounded by water on three
NOMINATING COMMITTEE: Mike Hoare sides, what happens in that environment is of critical importance
NAC ENDOWMENT FUND COMMITTEE: Michael Morres to us. The collapse of the Atlantic Cod fishery in the 1990s is just
NATIONAL AWARDS SELECTION COMMITTEE: Barry Walker one example of how ignoring what is happening in the ocean can
NAVAL AFFAIRS COMMITTEE: Ian Parker have disastrous impacts on our economy and society.
MEMBERSHIP COMMITTEE: William (Bill) Thomas On a national level, this issue features two briefing notes pro-
FINANCE AND INVESTMENT COMMITTEE: King Wan duced by NAC’s new Naval Affairs Program. These relate to Can-
NATIONAL APPOINTMENTS ada’s shipbuilding challenges and shine a light on why the process
takes so long and costs so much. While learning about the machi-
NATIONAL ARCHIVIST: Richard Gimblett
nations that affect the procurement process may not make us feel
CHAIR, HISTORY AND HERITAGE: Alec Douglas
any better about long delays and budget over-runs, understanding
EDITOR, STARSHELL: Carmel Ecker
it may give us pause next time we think of cursing anyone in
EXECUTIVE DIRECTOR, SECRETARY / COMMUNICATIONS: government for “bad news” in the delivery of much-needed new
David Soule • 613-837-4026 • executivedirector-nac@outlook.com ships. People in government are working within a cumbersome
STARSHELL EDITOR system that, as you will learn from the briefing notes, is designed
Carmel Ecker • 250-661-1269 • starshell@shaw.ca to ensure that no detail is overlooked and the government is
protected from litigation.
STARSHELL magazine is published quarterly by the Naval Association Putting on my writer’s hat this issue, I had the pleasure of in-
of Canada (NAC) in March, June, September and December. The editor terviewing Dr. Richard Gimblett about his recent Meritorious
is solely responsible for the selection of material. Contributions are Service Cross. Dr. Gimlett has left an indelible mark on the Ca-
encouraged and should be sent direct to the editor. NOTE: All material nadian Navy, both during his 26 years as an officer and in his
must reach the editor no later than the 15th day of the month prior to civilian career that followed. He was involved in the completion
the month of publication. All photographs submitted for publication
of the centennial naval monument, the introduction of a distinc-
must be accompanied by suitable captions and accreditation. Changes
of address are to be sent to the executive director, David Soule, tive naval ensign and the writing of Leadmark 2020, among other
ExecutiveDirector-NAC@outlook.com. things. And despite being retired, he’s not done yet. We can ex-
The opinions expressed in this publication are deemed to be exclusively pect a lot more on Canadian naval history from Dr. Gimblett.
those of the author(s) and are not necessarily shared by the Naval And, of course, there’s lots more in this issue. Enjoy!
Association of Canada, the Royal Canadian Navy or the Department of
National Defence. If copyright is specified for any item, permission to
copy must first be obtained through the editor, otherwise material may
be copied without permission provided appropriate attribution is given
to both the author(s) and STARSHELL.
DISTRIBUTION and SUBSCRIPTIONS – STARSHELL is circulated Editorial services, layout and
elecrontically via email and displayed on issuu.com. Anyone wanting a design are provided by
subscription should contact the Executive Director at executivedirector-
nac@outlook.com.
In this Edition
10 16
8
26 28
20
From the Bridge 4 The Three Sisters 30
Front Desk 6 Admiral Welland’s Memoirs:
NAC member awarded Meritorious Service Cross 8 What was accomplished in Korea? 32
Ship casualties and the marine environment—who BOOK REVIEWS
is responsible? 10 • Learning War 36
Naval Shipbuilding In Canada—why does it • Progressives in Navy Blue 38
take so long and cost so much? 16 • The Kissing Sailor 40
The complexities of naval procurement 20 Last Post 42
Impressions of MV Asterix 22 Past advocacy to be proud of 45
Hamilton, A Unique Naval Heritage Site 26 Our Navy 46
A place for Hammy Gray 28
2 | Starshell Winter 2019
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Starshell Winter 2019 | 3
From the Bridge
Bill Conconi, National President
A new season but old challenges remain
March brings the promise of spring, promoted to Rear-Admiral and will in attracting new members who can
new growth and change. For the Royal be appointed to a new position as the continue to carry out that task.
Canadian Navy, this change has already Vice Commander of the US Second We have taken many steps already. Our
begun with the release of the General Fleet in Norfolk, VA. members made significant contributions
and Flag Officers’ appointments. Congratulations to all on these pro- to the development of Canada’s De-
Of particular note this year will be motions and appointments. fence Policy, helping to shape the navy
the retirement of Vice-Admiral Ron As our navy positions and prepares it- of tomorrow. Our Naval Affairs program
Lloyd as Commander RCN. We extend self for the future, so too must NAC. As continues to develop additional resourc-
our sincere appreciation for his lead- an organization we are evolving and in es and discussion papers for the future. I
ership and many contributions to our that process we face a number challeng- urge you to check out the Naval Affairs
navy. With an upcoming move back to es, particularly with respect to attracting section of our website (www.navalassoc.
the West Coast for his retirement, we new members. As older members “time ca/naval-affairs/about-naval-affairs/) to
hope he will be able to join in NAC out” or become unable to participate see what has been accomplished and I
activities on a regular basis. fully in our events, we are challenged to invite you to contribute your thoughts
Notable promotions and appoint- find newer members who support the and expertise to this important work.
ments include: aims of our organization. We are not Our next step will be to get the word
• Rear-Admiral Art McDonald will be alone in this as many associations see out. Work on an extensive communica-
promoted to Vice-Admiral and will declining membership. As an example, tions plan is underway.
replace VAdm Lloyd later this spring. we note with regret the disbandment of Informing the public also increases
• Commodore Chris Sutherland will be the Atlantic Chiefs’ and Petty Officers’ our relevance and will help us to expand
promoted to Rear-Admiral and will be Association. our membership base. It will also build
appointed as Deputy Commander of Our branches do an excellent job of public confidence in our navy. This is im-
the RCN, replacing RAdm McDonald. organizing luncheons, speaker evenings portant work, and we cannot leave it to a
• Commodore Simon Page will also be and tours, and periodic conferences. But few individuals. Our branches will have
promoted to Rear-Admiral and take we need to go beyond our current branch a key role in this work and it remains
on the challenging role of Chief of structure to become a truly national as- important that we support each other
Staff to the Assistant Deputy Minister sociation that is seen to be relevant in and enjoy our camaraderie.
(Materiel). educating Canadians on the continuing Yours Aye,
• Commodore Steve Waddell is to be need for the RCN and to be relevant Bill
VAdm Ron Lloyd, Com- RAdm Art McDonald Cmdre Chris Sutherland; Cmdre Simon Page; pro- Cmdre Steve Waddell;
mander RCN, is retiring will be promoted to Vice promoted to Rear-Admiral moted to Rear-Admiral and promoted to Rear-Admiral
this year. Admiral and become and appointed Deputy appointed Chief of Staff to and appointed Vice Com-
Commander RCN. Commander of the RCN. the Assistant Deputy Min- mander of the US Second
ister (Materiel). Fleet in Norfolk, VA.
4 | Starshell Winter 2019
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The Front Desk David Soule, Executive Director A sustainable navy: there is work to do! The past couple of months have been ing the publication electronically. I do Endowment Fund grant applications good news for the Royal Canadian Navy: need your feedback on whether or not Grant applications are due to me by the warship design for the RCN’s future the formats we are using meet your the end of May 2019. While this activity Canadian Surface Combatant has been needs and if you know of better ways is normally coordinated by your branch awarded, the build of the Joint Support to electronically publish and present executive, they may not be aware that Ship (JSS) has been advanced, the in- Starshell. I have received very little some deserving activity in your local terim fleet auxiliary Asterix is back at feedback, (some good advice received area is worthy of consideration for a sea, AOPS will be introduced into the from a couple of folks) and feedback grant. The guidance as to what kind of fleet in the coming months, the Com- is important. As a subscriber to several activities are eligible is described in the mander RCN has said that the Victoria electronic newspapers and journals, all NAC Administration Manual and on the class modernization program will get are not equal and several leave much to website. Your branch will have someone underway, and the Cyclone helicopter be desired in terms of their layout and who coordinates these applications. fleet has completed its first deploy- ease of use on an electronic device. While the funds allocated for some of ments. And yes, I know I have missed NAC Awards these activities seem small, they often some other positive navy news… The annual canvassing for NAC allow for some very useful work to get All this good news is tempered by the awards nominations is underway. While done, such as enhancing a display in a fact that the RCN is facing personnel this activity is coordinated by the indi- local museum, providing scholarship issues that are complex and difficult to vidual branch executive, you, the mem- funding and other leadership building address. Many of you would probably ber, can play a role in recognizing those activities for sea cadets, or for a project say this is an old problem, but it remains in your branch who deserve recognition that promotes naval awareness in your a problem nonetheless, and no number by bringing their names forward to your local community, to name a few worthy of ships and submarines will ensure we branch executive. The administration causes. As with the medallion awards, it have a viable navy if we cannot recruit process and description of what these would be great to announce and pres- and retain personnel. I would also add awards are for is described in the NAC ent as many of these grants as we can at that there is no guarantee that what the Administration Manual and is well- the October meeting in Vancouver. government has approved will actually known by your branch executive. NAC Membership happen. In terms of future ships and Medallion and other award nominations We are working diligently to see how submarines, these builds can be slowed that require national level approval/ best to implement a national-level mem- down or fewer numbers ordered or review are to be submitted to me by bership registration system that would programs cancelled. May 31, 2019. I hope we will be able to allow a member to pay dues to national So while there is good news about, award some of these at the upcoming and the branch, receive a tax receipt au- there are no guarantees on the future October NOABC 100th anniversary tomatically, register for national events, shape and size of the navy—I include celebration in Vancouver. donate to various NAC charities, and fleet numbers, fleet make-up and per- I will also be updating the medal- more importantly use modern online sonnel to man and support operations, lion award web page list for 2017 and payment methods for our banking. Ideal- etc. As a result, I believe our mission to 2018 in the coming week or so. I have ly, this should take some of the adminis- inform Canadians about the need for been told that some names are miss- trative burden off the branches. Branches a navy (and a coast guard) will be re- ing from earlier lists so if you have who wish to use their current online reg- quired now, in the near future and over been awarded a medallion, please take istration system would continue to do so the long term. All to say, there is work a look at the web page and make sure or migrate to the national system. The to do! your name is there. If it isn’t, let me other advantage is that some model sys- Starshell know: www.navalassoc.ca/national/nac- tems function as a website and allow for As you are aware, we are distribut- awards/. emailing “products” such as NAC News 6 | Starshell Winter 2019
and branch newsletters. In effect, the NOABC 100th Anniversary/NAC NAC Banking
plan is to work toward a “one-stop-shop” Special Meeting Oct. 2-6, 2019 in In the coming months we will be
system for administration. Vancouver moving to an accounting system that
Naval Affairs As most of you are aware, this will be will allow for electronic transfer of
I encourage all of you to visit the Na- a very special event and I encourage you funds, etc. For day-to-day activity I
val Affairs pages on the NAC website: to keep checking the NAC and NOABC will be responsible, with King Wan
www.navalassoc.ca/naval-affairs/about- website for updates. NAC News will also providing necessary oversight. This
naval-affairs/. There is a lot of new and provide reminders and program updates should improve how we do business
relevant older information that branches right up until the event happens. The on a national level (fewer cheques and
and NAC members can use to support NOABC team has been hard at work letters back-and-forth, etc.). I am also
our mission. One new item is the Ni- to develop an interesting program that hoping to include an online ability to
obe Papers. These are research papers all can enjoy. The NAC Special Meet- purchase kit shop items. This is taking
of topical maritime-related interest. In ing will allow for all members to discuss longer than expected to implement,
addition, we continue to build on the items that are of interest. I am really but we want to make sure everything
briefing notes. looking forward to meeting some of you works correctly from the start.
NAC Communication Strategy there for what should be a grand event! Hopefully, this edition of Starshell
We are just about to release our com- NAC AGM 2019 provides a bit of escape for what many
munication strategy, subject to a couple As was the case last year, the NAC of you have found to be a long and hard
of final editorial checks. This will be fol- AGM will be held via electronic means winter. As always, let me know if some-
lowed up with a plan to execute the strat- using GoToMeeting software. The cur- thing piques your interest or becomes
egy. I think you will find this provides the rent plan is to hold the AGM in early a bee in your bonnet so Starshell can
scope of the audience we are targeting in to mid-June 2019. More details will be continue to serve your needs.
regard to maritime awareness and the fo- forthcoming shortly. You can expect the As you go about your life, find some
cus we need to support, among other agenda and items requiring a vote to be time to have a good laugh, enjoy the
things, our Naval Affairs Program. From similar to last year’s AGM. The NOABC company of fellow members, and per-
my perspective, the plan should give ev- special meeting will allow for other haps recruit at least one new person to
ery member an idea of what they can do items to be discussed and voted on as the fold.
to help make this work. necessary.
!
u s The Naval Association of Canada:
o i n • Actively supports the Royal Canadian Navy.
J
• Educates. We do not lobby.
• Produces position papers, not opinion papers.
Members are encouraged to state opinions, but NAC
does not.
All memberships include • Educates all politicians of all parties for they will
a subscription to our certainly change and naval ships are around for many
quarterly magazine, political cycles.
Starshell (yep, you’ll get
this snazzy magazine • Welcome all who are interested in ensuring Canada
delivered four times a year has a capable and effective Navy for all three oceans.
electronically!). • Has local Branches in many major cities across Canada
with local activities, social and otherwise.
Visit www.navalassoc.ca for information on your local Branch and its website.
Starshell Winter 2019 | 7
NAC member awarded Meritorious Service Cross
By Carmel Ecker, Editor as the Command Historian for the RCN. to the navy in understanding their past.”
Dr. Richard Gimblett’s fingerprints are He “collected a couple of degrees” His expertise focuses primarily on the
on many parts of Canada’s naval history during his time in the navy, finishing his post-Cold War era—a time he considers
and his contributions were recognized formal education with a doctorate in largely ignored by most naval historians.
this past year when the long-time NAC Canadian Naval History. “I say this tongue in cheek; I’m the
member was awarded the Meritorious The list of papers, articles, books and only Canadian naval historian who has
Service Cross (civil division). reports he’s written or edited during his written nothing on the Second World
“I’m honoured and I’m humbled and I career takes up a whopping four pages War. Everybody else does the Second
was really quite surprised by it because of his CV and includes “Leadmark, the World War, which leaves the rest open
it’s a fairly prestigious award,” said Gim- Navy Strategy for 2020,” for which he to me.”
blett in a recent phone interview. was the lead writer. His career as a historian within the
But the award isn’t so surprising when “I shaped many of the ideas in it based navy started when he co-authored the
you examine Gimblett’s contributions on my analysis of naval operations to official history of the Gulf War. Having
to the understanding of Canada’s naval that point, and having looked at the served in HMCS Protecteur as a Combat
history and its use in naval strategy for way we had done naval operations in Officer during the Gulf War, he had first
the future. the past, especially since the Gulf War,” hand experience in the conflict as well
Gimblett started his career as a naval says Gimblett. “We turned many of the as an ability to see the broader historical
officer in 1982, serving in HMC Ships factors in there into a strategy—the context. That project took three years to
Kootenay, Gatineau, Preserver and Pro- fundamental elements of a Canadian complete.
tecteur before his expertise in naval his- naval strategy.” That and his other post-Cold War na-
tory took him ashore in 1991. There, he Though his writing has been prolific, val research prompted his MSC citation
fulfilled a number of advisory roles in- most of it will never be read by the to deem him “Canada’s premier post-
cluding appointments as an analyst for general public, he says. “I’m not a story Cold War naval historian.”
the Directorate of Maritime Strategy, a historian. I look at operations, policies, The books most familiar to the general
researcher and writer for the Directorate institutions. I’m a boring historian,” he public would be the two Naval Centen-
of History and Heritage (DHH), Acting says with a laugh. “It’s just not the sort of nial coffee table books he edited: “Na-
Director Navy DHH and most recently stuff that people go for. It’s of more use val Service of Canada: The Centennial
Story”, which is available online in the
DHH section of the navy’s website; and
“Citizen Sailors: Chronicles of Canada’s
naval reserve”, which he co-edited with
Michael Hadley.
Despite recently retiring, Gimblett’s
list of current research and writing proj-
ects is long and includes the second half
of the Cold War, a period he says has
very little written about it from a naval
perspective.
“This is my time at sea; the 70s and
80s is when I was living in the old steam
destroyers and tankers,” he says. “So I’m
curious about the nature of the work we
were doing.”
Research and writing aside, Gimblett
has also contributed to some highly vis-
ible projects that celebrate Canada’s na-
val history. He was involved with several
initiatives during the navy’s centennial
year, including the introduction of a dis-
Dr. Richard Gimblett receives the Meritorious Service Cross (civil division) from Governor General tinctive naval ensign.
Julie Payette. At the time, the Canadian government
8 | Starshell Winter 2019had reintroduced the executive curl and Commission (NCC), Capt(N) Pickford Dr. Richard Gimblett’s
reinstated the “Royal” prefix for all three and his staff oversaw the design and
Meritorious Service Cross
military branches. development of the monument. Con-
Then Commander Royal Canadian struction began in 2010, but wasn’t yet citation reads:
Navy, VAdm Paul Maddison asked Gim- complete when the centennial project Dr. Richard Gimblett, MSC, CD, RCN,
blett what else they might suggest since shut down in early 2011. is recognized internationally as our
the government was in the mood to As the Acting Director of Navy His- country’s premier post-Cold War na-
invest in the naval identity. tory and Heritage, Gimblett was asked val historian. His research and advice
“I said, ‘Well, the flags are flying on the to see the project through, which he contributed significantly to the cre-
wrong end of the ship,’” Gimblett recalls. did until it was unveiled in 2012. But ation of a national monument to the
At the time, the maple leaf was flying at there were a few things left undone due
Royal Canadian Navy in Ottawa and
the stern, making Canada one of the few to a slight shortage of funding, so when
to the re-introduction of the Cana-
countries that used their national flag as a little more money was found as part
dian Naval Ensign for warships and
an ensign. of Canada 150 to see through the few
other designated vessels. His analysis
VAdm Maddison liked the idea and finishing touches, Gimblett served as an
of past operations and partnerships
pushed for a distinct Canadian naval advisor to the NCC.
ensign. Looking back on his long career
has influenced the strategic direction
“It was not popular among senior lead- with the navy as a serving officer and a of the navy’s involvement in world
ership other than VAdm Maddison, but civilian, Gimblett is proud of what he’s maritime security.
now that we’ve got it, wildly popular!” contributed.
says Gimblett with a chuckle. “The finishing off of the monument,
Gimblett was also responsible for bringing in the distinctive Canadian na-
overseeing the completion of the Cana- val ensign and the work that I did on
dian Naval Monument in Ottawa, which the operations analysis for the navy, I’m
had been started by Capt(N) John proud of those,” he says. “And I’m really
Pickford, the Director of the Canadian chuffed someone thought enough about
Naval Centennial. it to write me up for the award. It’s an
Working with the National Capital honour.”
Starshell Winter 2019 | 9WHO IS RESPONSIBLE?
Ship casualties and the marine environment
By Aldo Chircop, JSD
10 | Starshell Winter 2019 Starshell Winter 2019 | 11International shipping is vital to trade. ultimately responsible for decisions con- forms is the Lloyds’ Open Form—‘No
Over 80 percent of global trade by vol- cerning the safe navigation of the ship. cure, no pay’. Historically, the salvor was
ume, and more than 70 per cent of its Difficult decisions may have to be made, entitled to the salvage reward if their
value, is carried by over 50,000 vessels, possibly under commercial and head efforts produced a cure and the vessel
according to the UNCTAD Review of office pressure. An example of errors was taken to a safe place for the owner
Maritime Transport in 2017. Many states in judgement is the case of the Amoco to retake possession. Prior to ISC 89, in
rely on marine transportation for their Cadiz, a modern tanker that grounded the case of a major casualty where the
exports and imports and generally to on the coast of Brittany in 1978 and damage to the property was extensive
fuel their economic development. Over caused massive pollution and economic and valuable cargo was lost or spilled,
the years, shipping has become safer losses. A formal investigation found that the salvor risked not getting a reward at
and more environmentally sustainable, the captain made the mistake of wast- all, despite best efforts! The convention
largely because of the international con- ing precious time attempting to contact remedied this by providing special com-
ventions and subsidiary rules adopted by head office in a different time zone be- pensation for the salvor who manages to
the International Maritime Organization fore contracting a salvor to assist. The prevent or mitigate environmental dam-
(IMO), a specialized UN agency based ship had lost its ability to steer and was age when the potential reward would
in London, England. While ship colli- unable to keep a safe distance from the otherwise be low.
sions and accidents on board ships con- coast in a gale. The master has the au- The salvage arbitration process deter-
tinue to occur, a report in the 2017 Al- thority necessary to contract essential mines the level of the reward, the cost of
lianz Safety and Shipping Review shows services for the safety of the ship and to which is absorbed by the ship owner’s
major casualties resulting in catastrophic request assistance as needed. policy issued by a mutual protection
environmental impacts are declining Salvors and indemnity association, so called P&I
year after year. But when they happen, A professional salvor is likely to be Club. Special compensation is intend-
what is the expected response and who the first on the scene to assist a vessel in ed to provide an incentive for salvors
is responsible? Let us consider this ques- need of assistance. Salvage is a contract- to take on difficult salvage cases. The
tion in steps. based professional service and now gov- procedure and compensation have been
The Master erned by the International Convention further improved through cooperation
The master, as the professional mari- on Salvage, 1989 (ISC 89). between international associations rep-
ner in command, is the person who is One of the most common contract resenting ship owners, salvors and insur-
The Amoco Cadiz grounded on the coast of Brittany in 1978, causing massive pollution and economic losses.
12 | Starshell Winter 2019ance interests and the introduction of a
supplementary accounting clause.
In recent years there tige where losses were suffered in Spain,
France and Portugal even though the
Port of Refuge
The vessel in need of assistance may
has been a discernible vessel broke up 260 kilometres from
the Spanish coast. The 63,272 tonnes of
require a port of refuge or to be taken
to a place of safety following salvage.
increase in instances heavy fuel oil spilled impacted fisheries,
aquaculture and tourism businesses in
At this point, the master and salvor will
have to communicate with coastal state
where coastal state Spain and France, necessitating exten-
sive clean up and preventive measures.
authorities to seek permission to enter
port or sheltered waters. In most cases,
authorities denied Further preventive measures were re-
quired in Portugal. Spain claimed losses
authorities permit temporary entry into
port or other sheltered waters to enable
refuge to ships in need of over $1 billion, France $100 million
and Portugal $4 million.
the ship to stabilise its condition. This
is not an easy decision because, while a
of assistance. Liability
The claims of Spain, Portugal and
port is desirable, a damaged vessel could France were compensated in part under
potentially pose a risk to port operations. an international legal regime under two
Moreover, if the ship is losing cargo—say conventions.
it is leaking oil—it poses a threat to the best crewed vessels can suffer mishaps The first is the International Conven-
environment. There have been instances in what is a dangerous working environ- tion on Civil Liability for Oil Pollution
of a fire on board the ship and no port or ment. The Amoco Cadiz was a five-year Damage, 1969 (CLC), which establishes
coastal state authority can be expected to old tanker with an experienced captain the shipowner (and its insurer) as the
permit the vessel near coastal settlements. when it was lost. first level of liability. The ship owner’s
In recent years there has been a dis- Decision-making framework liability is strict and limited. There is no
cernible increase in instances where The IMO has stepped in and adopted need to prove intent or negligence and
coastal state authorities denied refuge to guidelines to assist communication and the extent of liability is determined by a
ships in need of assistance. The coastal decision-making using a risk-based as- formula based on tonnage.
state has a customary duty to assist, but sessment framework to help depoliticize The second is the International Con-
it also has a right to protect itself and and remove emotion in such difficult vention on the Establishment of an Oil
if the risk of providing refuge is high, it decisions. Many states have endorsed Pollution Fund, 1971 (IOPCF) and rep-
has a right to self-protection. In some this framework, but there have been re- resents the cargo owner’s share. There
instances, this concern has led to a ‘not cent instances where refuge was denied have been several funds over the years.
in my backyard’ (NIMBY) attitude. In to ships without apparent consideration The fund collects levies on imported oil
1999 the tanker Castor was refused ref- of the framework. It was reported that in member states. The IOPCF compen-
uge by seven Mediterranean states and authorities in Japan and South Korea in sation is applicable when the limit of the
sailed for a month in a risky condition 2013 did not follow the IMO Guidelines ship owner’s CLC liability is insufficient
before it was finally granted refuge and with respect to the Maritime Maisie. The or unable to address the claims. The
was not lost. Shortly afterwards, the Er- 11-year old 44,404 dwt chemical tank- liability of the IOPCF is not unlimited
ika and Prestige, aging tankers in trouble er was under tow for three months af- and its ability to cover claims for a large
in stormy weather and leaking cargo, ter a collision in the Sea of Japan while spill may require further contributions
were denied refuge and became casu- needing a place of refuge. Admittedly, by member states.
alties, causing major pollution and eco- the guidelines are not binding, but they Both conventions apply to persistent
nomic loss. Both states were criticized were adopted by consensus and reflect oil only, so light fuel oils are not covered.
for not providing refuge and potentially best practice. South Korea eventually The IOPC funds are administered by a
averting the subsequent losses. provided refuge in March of 2014. small international organization carry-
How can the risk of providing refuge The worst case scenario is a casualty ing the same name and now based at
to a ship in distress be mitigated? Simply in which life may be lost together with the IMO in London. In Canada we have
scuttling the vessel, although practiced the ship and cargo. The 1992 collision of an additional domestic fund, first estab-
on occasion in the past, is not a solution the tanker Nagasaki Spirit and container lished in 1972, and now known as the
as it produces other problems, not the vessel Ocean Blessing and the ensuing Ship-Source Oil Pollution Fund, which
least of which is the deliberate pollution fire in the Strait of Malacca resulted in is governed by the Marine Liability Act.
of the marine environment. Although the loss of all but two members of the Most importantly, the Canadian fund
several instances of ships in distress have crews of both ships. The environmental provides compensation for spills from
concerned aging substandard ships, the and economic impact can be substantial all types of oil, including mystery spills.
reality is that even the most modern and as was evident in the case of the Pres- Continued on page 14
Starshell Winter 2019 | 13The process of advancing oil spill actual payments made to date are less an arduous process. A ship engaged in
claims is complex. Typically, the claims and Spain is pursuing further judicial re- international trade is registered in one
are instituted in a domestic court that course. In the case of France, the govern- state but may be owned by interests in
has admiralty jurisdiction. Claims against ment’s claim was assessed at €42.2 mil- other states. More than 70 per cent of
the ship owner, insurer, director of the lion (USD $53 million) and individual the world’s commercial fleet is registered
IOPCF—and in Canada also the admin- claims at €19 million (USD $22 million). under foreign flags, and many of these
istrator of SSOPF—are joined. Claims are Like Spain, France has not agreed with are open registers, known also as flags of
ascertained and the respective degrees of this assessment and is continuing judicial convenience.
liability apportioned by the court. There action. Portugal agreed with an assess- In 2017, the three largest registers—
may be other separate actions against ment of €2.2 million (USD $2.6 million) Panama, Liberia, Marshall Islands—were
other actors, such as classification societ- and discontinued court proceedings. all open registers, whereas the three larg-
ies, and they may occur in foreign courts, Are there other courses of action in the est beneficial owners were Greece, Japan
but these are separate from the compen- event an injured state does not receive suf- and China, according to the UNCTAD
sation process under the CLC and IOP- ficient compensation to meet all losses? Review of Maritime Transport in 2017.
CF conventions. There are strict criteria In both the Erika and Prestige cases, For a ship owner, economics play a ma-
for compensation that claims must satisfy the available compensation was insuffi- jor role in ship registration. Open regis-
and they must be properly evidenced. For cient to cover all losses. Spain’s attempt ters permit foreign ownership, crewing
example, the preventive and clean-up to proceed against the classification soci- of ships by non-nationals, have lower
measures must be reasonable given the ety of the Prestige, the American Bureau taxes, and provide for easy flagging and
nature, location and other circumstances of Shipping, in a U.S. court failed. Courts reflagging. The ship itself is divided into
of the spill. Claims for environmental have tended to consider these non-profit shares that may be held by different per-
damage must relate to actual costs in- organizations as providing an essential sons located in various countries. And the
curred to clean and restore and possibly community service. In some scenarios, owner might not even operate the ship,
monitor environmental loss, but cannot seafarers, as the visible human face of the especially if it is chartered or is run by a
be abstract value claims to environmen- casualty, have been criminalized. In the management company. Although, in the-
tal damage based purely on mathematical case of the Prestige, the master, who did ory, every ship has a unique IMO identi-
models. everything a professional mariner could fication number and a documentary trail,
In the case of the Prestige, none of the be expected to do in such situations and in practice it may be difficult to identify
claims advanced by Spain, France and was one of the last persons to be rescued the precise owners. At times, this system
Portugal were fully compensated. The from the stricken vessel, was subjected to has enabled countries under a Secu-
IOPCF assessed the claims of Spain at criminal prosecution. rity Council embargo to circumvent the
€300.2 million (USD $351 million) for Ship registration embargo.
the government’s claim and €3.9 million Identifying other persons who could Under the United Nations Convention
(USD $4.6 million) for other claims. The possibly be held responsible can be on the Law of the Sea, 1982, flag states
A ship engaged in
international trade is
registered in one state
but may be owned by
interests in other states.
More than 70 precent of
the world’s commercial
fleet is registered under
foreign flags.
14 | Starshell Winter 2019have a legal duty to exercise effective ju- on the white list. These include The Ba- that take on the risk to ensure that there
risdiction and control over their ships. In hamas, Liberia, Malta, Marshall Islands is sufficient shipping for global trade.
reality, not all states are parties to all the and Panama, among others. The grey list, Aldo Chircop received a Doctorate in
key IMO safety, security and environmen- which accounts for 5.78 per cent of ships the Science of Law (JSD) from Dalhousie
tal conventions, and may not have capa- inspected, includes the US flag. It is also University. He is Professor of Law at the
ble maritime administrations to discharge true that the black list, accounting for Schulich School of Law and a member of
this duty effectively. But even those that 6.72 per cent of inspected ships, include the Nova Scotia Bar. He was formerly
are parties to most conventions and have a few open registers (e.g., Belize, Cook Is- Chair in Marine Environment Protection
a capable maritime administration are lands, Vanuatu). The fact is that accidents at the IMO’s World Maritime University
not necessarily responsible for the ships and ship losses have decreased over the in Malmö, Sweden and held directorships of
registered under their flags. National ship years also due in part to vigorous port the Marine Affairs Program and Marine &
registers enjoy sovereign immunity. In state inspections, but there continue to Environmental Law Institute at Dalhousie,
the case of the Erika, judicial proceed- be slippages in substandard shipping and and International Ocean Institute and the
ings in a French court against the Malta maritime fraud. Mediterranean Institute in Malta. His cur-
Maritime Authority, which registered the The need to compensate losses result- rent research program includes comparative
substandard vessel, failed because of the ing from ship casualties while ensuring Arctic policy, the international regulation of
sovereign immunity enjoyed by a foreign that there continues to be sufficient re- international shipping and navigation in the
government authority. sponsible shipping to carry maritime trade Arctic, and comparative Canadian-Russian
That many ships are registered under is a delicate balancing act. Lord Denning regulation of shipping in the Northwest Pas-
open registers does not in and of itself famously stated the harsh reality of the sage and Northern Sea Route respectively.
mean that such ships are substandard, limitation of liability in shipping: “...there Professor Chircop is a member of the Inter-
nor does it necessarily mean that ship- is not much justice in this rule; but limita- national Working Group on the Arctic and
ping is less safe because of such regis- tion of liability is not a matter of justice. It Antarctic of the Comité Maritime Interna-
tration. The most modern tanker fleet is is a rule of public policy which has its ori- tional. Professor Chircop has co-authored
registered under the Liberian flag. The gins in history and its justification in con- or co-edited over 20 books and 80 articles
Paris Memorandum of Understanding on venience.” And that sums up the liability and book chapters. Professor Chircop
Port State Control 2017 report includes regimes in international shipping. In the has received awards in book publica-
several open registers as low risk ves- interests of maritime trade, public policy tion, teaching and distinguished service
sels among the 86.70 per cent of ships has dictated certain protections for those to graduate studies at Dalhousie.
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Starshell Winter 2019 | 15Naval Affairs Program Briefing Notes The complexities of naval procurement By Dave Perry sor in DND/the CAF. During this stage, secured. This sometimes, but not always, Canada’s process for procuring potential funding sources are identified, requires a memorandum to cabinet. A defence equipment involves multiple the strategic context within which the business case analysis is completed, and government departments, is long and is potential project exists is described, a the preferred option is briefed for ap- extremely complicated. The Department project brief is written, and the high level proval at the Defence Capabilities Board of National Defence (DND) guideline mandatory requirements are outlined. At at the end of this phase, followed by an- on its internal process alone runs to 265 this point, a Project Complexity and Risk other review by IRPDA. pages. The following Briefing Note de- Assessment is undertaken and ranks the In Options Analysis, the project is pre- picts only the major activities involved in potential project on a four-point scale sented to a Senior Review Board, and Canada’s process for buying equipment where a four indicates the most compli- from this point forward it is briefed to for the Royal Canadian Navy (RCN) and cated and risky projects. If the proposal that board annually. The risk and com- makes many simplifications and general- to address the capability deficiency is ap- plexity assessment is also refreshed. At izations for the sake of brevity. proved by the Defence Capability Board, this stage the project is reviewed by an The RCN’s projects follow the same it officially becomes a project. interdepartmental governance team, in- basic process as the other military ser- In recent years, an identified fund- cluding representatives from Public Ser- vices,1 with the exception of the Arctic ing source was required to move from vices and Procurement Canada (PSPC), and Offshore Patrol Ship (AOPS), Ca- the Identification stage into Options the department responsible for conduct- nadian Surface Combatant (CSC), and Analysis, unless the project was identi- ing the actual procurement activity and Joint Support Ship (JSS) projects. These fied as a “key” initiative. The approval by negotiating contracts. fall under Canada’s National Shipbuild- government of Strong, Secure, Engaged: A key part of the procurement process ing Strategy (NSS), and are therefore Canada’s Defence Policy in 2017, at least from this point forward is interdepart- subject to a few small, but meaningful, for a time, identified those projects with mental meetings coordinated by the De- differences outlined below. funding that could make this transition. fence Procurement Strategy Secretariat The key characteristic that distin- In the future, new projects moving at PSPC, chaired by varying levels of guishes the RCN’s equipment projects from Identification to Options Analy- senior executives depending on a proj- from those of the wider DND and Ca- sis, or projects in Identification with ect’s cost. This secretariat function is nadian Armed Forces (CAF) is that the cost increases since the publication of provided in part by the National Ship- RCN has a relatively small number of Strong, Secure Engaged, must complete building Secretariat for the RCN’s three projects—25 projects out of a defence- an investment plan change proposal to NSS projects. All projects with budgets wide total of 234, or 11 per cent—with identify a source of funds within DND’s over $20 million are reviewed for the significant costs. Naval project budgets investment plan before moving to the potential application of the Industrial range from roughly $70 to $80 billion, next phase. Technological Benefits Policy, and those between 34 and 55 per cent of the de- Options Analysis over $100 million must comply with fence-wide total. Thus, the RCN has At the beginning of the Options Anal- this policy, resulting in engagement with relatively few projects, but a dispropor- ysis stage, all projects with budgets over officials from Innovation Science and tionate share of the most costly ones. $100 million (and some others) must Economic Development Canada. The five stages of a Canadian defence have their high level mandatory require- Definition procurement process are: ments reviewed by the Independent Re- At the end of Options Analysis the 1. Identification view Panel for Defence Acquisition (IR- project is briefed to the Program Man- 2. Options Analysis PDA). During this stage the statement agement Board for approval to enter the 3. Definition of operational requirement is developed, Definition phase, and onward for rec- 4. Implementation options for addressing the capability gap ommended approval to the Investment 5. Close-Out identified, including an assessment of the Management Review Committee for Identification costs and benefits of options. Initial en- approval if aspects of the project exceed In the Identification stage, a capability gagements with industry will sometimes the $50 million budget threshold. Once deficiency is identified by a project spon- occur, and policy coverage, if required, is approved at this board, a Corporate 16 | Starshell Winter 2019
Submission outlining the project and its Funding, special financial authority used Close-Out
plans in detail must then be prepared when capital expenditures exceed $5 At this point, the project moves to the
to secure expenditure authority, usually million, some of which is used to create Close-Out stage, which ends when all
from either the Minister of National De- a dedicated DND project management administrative project activities are of-
fence or the Treasury Board. The Minis- office, which determines substantive re- ficially completed. All told, the current
ter can approve a project if its assessed quirements, cost and schedule estimates. average timeline for a major DND proj-
complexity and risk falls within DND’s During the Definition phase the pro- ect is 16 years, with the time to comple-
capacity to manage projects, which is curement strategy is developed and ex- tion increasing with a project’s complex-
assessed on the same four-point scale ecuted, including the release of any ten- ity and risk. Many variables, including
noted earlier. Currently, DND’s assessed der documents and evaluation of bids political decisions, the project budget,
capacity is a three, so the Minister can (if applicable). At the end of Definition and the alignment, or lack thereof, of in-
approve projects with an assessed risk phase—once a procurement strategy has ter-departmental actors when decisions
and complexity of three or lower. been executed—the project must again or approvals are needed can add or sub-
The AOPS, CSC and JSS projects are secure approval from the same gover- tract years to a project’s life. The RCN’s
somewhat distinct from many other nance bodies required to enter Defini- three NSS projects, amongst the most
capital projects in that they all received tion, to proceed to the Implementation risky and complex at DND, have expe-
conditional expenditure authority in the phase. In this phase, PSPC must obtain rienced all of these factors in addition
Definition phase, which has required contracting approval to sign the contract to the complication of being part of an
multiple Treasury Board approvals for from the Treasury Board. industrial strategy to revitalize Canada’s
that phase of the project’s life. In contrast, As equipment is delivered, the project shipbuilding industry. The shipbuilding
many projects receive a single approval. eventually reaches an Initial Operational projects can therefore be expected to
Implementation Capability; in project management terms, take longer than other RCN projects.
When expenditure authority is grant- this is the milestone reached when the Footnotes
ed, this marks the transition from deter- capability provided by the project can be 1. It is the same for non-service parts of
mining what should be done to mitigate used operationally on a sustained basis. DND too like CJOC, the intelligence groups,
a capability deficiency, to determining The next meaningful milestone is Full information management, etc.
how the preferred option will be imple- Operational Capability, which is the A bibliography is available at www.navalas-
mented. This approval also means that when all project deliverables have been soc.ca/wp-content/uploads/2018/10/biblio-
the project is assigned ‘Vote 5’ Capital delivered. Procurement.pdf
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The story continues...Naval Affairs Program Briefing Notes NAVAL SHIPBUILDING IN CANADA Why does it take so long and cost so much? HMCS Harry DeWolf under construction. Photo by Waye Mason, https://commons.wikimedia.org/w/index.php?curid=68915143 If you follow the news, and have read about cost first, but the two questions da for more than 20 years.2 And getting Briefing Note #6 about the National are related. information from outside Canada can be Shipbuilding Strategy (NSS), you’ll One of the main reasons for cost in- problematic. For one thing, not every- know that Canada is in the midst of creases is that the initial number the one wants to share information on their building new ships—“recapitalizing the government announces is just an esti- costs, and for another, the ships won’t be fleet”—for the Royal Canadian Navy mate. It seems like it should be easy to exactly the same so the costs will differ. and the Canadian Coast Guard. And put a price on a ship and stick to it. But it As well, costs for labour, materials and you’ll also know that it takes a long time isn’t. In his 2012 article “Estimating the technology will be different. So the gov- from the announcement that a ship will Costs of Naval Ships,” in the Canadian ernment makes an educated estimate of be built to the actual operation of the Naval Review, David Peer wrote, “Initial the cost at first. We should not be sur- ship, and the costs always go up. cost estimates for a purpose-designed prised that this cost changes over time. Why do the costs go up during the ship typically quote an error of ±40%, so As decisions are made about the ship, a project? And why does it take so long? the risk of under-or over-predicting cost more formal budget is developed. And Before we begin, let us note that these with early estimates is significant.”1 this budget will include more than the two issues are not unique to Canada (or Getting good data to make an accu- cost of the ship itself. It will include to the navy). Virtually every country rate estimate of cost is difficult. There things like long-term maintenance and/ will experience cost increases and delays is almost no Canadian data because no or service contracts for the ship, which in its procurement processes. Let’s talk major warships have been built in Cana- often represent significant costs. As well, 18 | Starshell Winter 2019
factors that were used to come up with Peer in his 2012 CNR article, “Historical small crews and their focus is to maxi-
an estimate will change over time. For information from a known design and mize cargo space. Naval ships have much
example, interest rates go up and down, cost data for selected major systems larger crews—although that may change
steel prices vary, foreign exchange rates and equipment can provide first ap- as technology relating to unmanned ves-
varies and this is relevant because many proximations of ship cost for a series of sels is developed—and have much more
components come from outside country. concept designs that meet the capability complicated propulsion, communica-
This means that the timing of purchases requirement.” tion and weapon systems. Warships are
will affect the price. The problem with this method of also built to different standards of “sur-
There are a number of other consid- determining costs is that the hull is of- vivability” than commercial cargo ships
erations that affect the cost. The design ten not the most expensive element of —they’re warships after all. This makes
and build of naval ships is extremely a ship. In the United Kingdom, for ex- warships heavier and denser than cargo
complicated and involves many naval de- ample, “systems represent the biggest ships.5
signers, engineers and technicians from a percentage of the price of a warship—70 Another possible consideration related
variety of manufacturers. So it’s not just per cent compared to 30 per cent for the to cost is where to build the ship. The
a matter of getting one quote from one hull.”4 government must decide if it wants to
company. There are often many compa- The numbers may be somewhat dif- design and build a ship in Canada, or if
nies involved, and to ask all of them how ferent in other countries, but the trend it wants to buy a ship “off-the-shelf” (i.e.
much they would charge for theoretical is similar. The technology inside the ship an existing ship). The Canadian govern-
equipment in a theoretical ship would has a major effect on the price and the ment no longer has the ability to design
be a long and painful process. Weight is government won’t necessarily know ships—the navy’s design offices were
often seen as the easiest attribute upon what technology it will acquire when it closed years ago—so designs could come
which to base an initial design cost. You estimates cost. from industry inside or outside the coun-
don’t need to know the exact capabili- Instead of trying to find existing naval try. Some people argue that because of
ties or characteristics at this point—just ships to estimate costs, why not look at labour costs and lack of efficiencies of
the size—and you can use other existing commercial cargo ships? Unfortunately, scale, Canada could get ships faster and
ships for this basic element. that’s problematic. Commercial ships for less money if it bought them or had
According to naval engineer, David are very different. They function with Continued on page 18
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