The Polar Code and Canada’s regulations on Arctic navigation: shipping companies’ perceptions of the new legal environment

ABSTRACT

In 2017, the Polar Code, negotiated under the auspices of the IMO, came into force. Later that same year, Canada issued new regulations applicable to navigation in the Canadian Arctic. In this paper, we investigate how this new legal environment is perceived by shipping companies. We conducted a survey, asking companies, both active and not active in the Arctic, how they assess the impact of the legal changes on their operations. Using a qualitative methodology, we coded and analysed 99 questionnaires. Our research shows that companies not active in the Arctic are, as could be expected, largely unaware of the Polar Code and often unwilling to respond to our survey, showing a limited interest in the Arctic shipping market. Companies active in the Arctic and well aware of the issues of safety of navigation and environmental protection generally welcomed the Polar Code. Respondents were less familiar with the new Canadian regulations, arguably corroborating findings according to which the Northwest Passage is not currently considered a potential regular shipping route.

KEYWORDS:

• Polar code
• Arctic Shipping Safety and Pollution Prevention Regulations
• IMO
• Arctic shipping
• Qualitative Analysis

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

^1. International Code of Safety for Ships Operating in Polar Waters (Polar Code), IMO Resolution MSC.385(94), 21 November 2014, effective 1 January 2017; Amendments to the International Convention for the Safety of Life at Sea, 1974, IMO Resolution MSC.386(94), 21 November 2014, effective 1 January 2017; Amendments MARPOL Annexes I, II, IV and V, IMO Resolution MEPC.265(68), 15 May 2015, effective 1 January 2017.

^2. For an historical overview see Brigham, The emerging International Polar Navigation Code: bi-polar relevance?, 244, particularly 246 ff.

^3. Fedi and Faury, Les principaux enjeux et impacts du Code polaire OMI, 81, Kikkert, ‘Promoting national interests and fostering cooperation: Canada and the development of a polar code’, Jensen, ‘Arctic shipping guidelines: towards a legal regime for navigation safety and environmental protection?’.

^4. Borgerson, ‘Arctic Meltdown: The Economic and Security Implications of Global Warming’, –, ‘The Coming Arctic Boom: As the Ice Melts, the Region Heats Up’, Howard, The Arctic gold rush the new race for tomorrow’s natural resources, O’Leary, ‘The New Ice Age: The Dawn of Arctic Shipping and Canada’s Fight for Sovereignty Over the Northwest Passage’.

^5. Beveridge et al., ‘Interest of Asian shipping companies in navigating the Arctic’, Chircop, ‘Sustainable Arctic Shipping: Are Current International Rules for Polar Shipping Sufficient?’, Fedi and Faury, Fedi et al., ‘The impact of the Polar Code on risk mitigation in Arctic waters: a “toolbox” for underwriters?’, Fu et al., ‘Towards a probabilistic model for predicting ship besetting in ice in Arctic waters’, Henriksen, ‘The Polar Code: ships in cold water–Arctic issues examined’, Lajeunesse, ‘A New Mediterranean: Arctic Shipping Prospects for the 21st Century’, Lasserre, ‘Case studies of shipping along Arctic routes. Analysis and profitability perspectives for the container sector’, Lasserre and Pelletier, ‘Polar super seaways? Maritime transport in the Arctic: an analysis of shipowners’ intentions’, PAME, Arctic Marine Shipping Assesment 2009 Report.

^6. Germany, ‘Requirements for Ships Intended for Polar Waters', 12 April 1991, IMO doc. MSC 59/30/32.

^7. Guidelines for Ships Operating in Arctic Ice-covered Waters, IMO Doc MSC/Circ.1056 – MEPC/Circ.399, 23 December 2002 and Guidelines for Ships Operating in Polar Waters, IMO Resolution A.1024(26), 2 December 2009, Annexe.

^8. Lalonde and Lasserre, Droit de la mer et souveraineté sur les passages arctiques, Bartenstein and Chircop, Chapter 18: Polar shipping law.

^9. United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 396, article 234.

^10. Bartenstein, ‘The “Arctic Exception” in the Law of the Sea Convention: A Contribution to Safer Navigation in the Northwest Passage?’.

^11. See Bartenstein and Chircop, note 8.

^12. PAME. p. 50–69, in particular at p. 67.

^13. See note 1. The Polar Code entered into force following the tacit acceptance procedure.

^14. Polar Code, Preamble, note 1.

^15. Arctic Shipping Safety and Pollution Prevention Regulations, CRC, c 354 [ASSPPR].

^16. Bartenstein, ‘Between the Polar Code and Article 234: The Balance in Canada’s Arctic Shipping Safety and Pollution Prevention Regulations’.

^17. For a comparative assessment of these changes, see Bartenstein and Lalonde, Shipping in the Canadian and Russian Arctic: Domestic legal responses to the Polar Code.

^18. UNCLOS, see note 9, article 94.

^19. Dalaklis et al., The future of Arctic shipping business and the positive influence of the Polar Code, Furuichi and Otsuka, ‘Examining quick delivery at an affordable cost by the NSR/SCR-combined shipping in the age of Mega-ships’, Jensen, Khon et al., ‘Perspectives of Northern Sea Route and Northwest Passage in the twenty-first century’, Lasserre and Faury, Arctic Shipping: Climate Change, Commercial Traffic and Port Development, PAME.

^20. Beveridge et al, Lasserre, –, ‘“Case studies of shipping along Arctic routes. Analysis and profitability perspectives for the container sector” [Transport. Res. Part A Pol. Pract. 66 (2014) 144–161]: A rejoinder’, Leppälä et al., Challenges in Arctic Navigation: the User Perspective.

^21. Dawson, Arctic Shipping: Future Prospects and Ocean Governance, Lasserre, ‘La navigation dans l’Arctique 2019: l’épreuve de la réalité’.

^22. –, ‘Navigation arctique: Renforcement du trafic de destination’.

^23. –, ‘Case studies of shipping along Arctic routes. Analysis and profitability perspectives for the container sector’.

^24. Sarrabezoles et al., ‘Arctic shipping insurance: towards a harmonisation of practices and costs?’.

^25. Dalaklis et al, Emmerson and Lahn, Arctic Opening: Opportunity and Risk in the High North, Lam and Lassa, ‘Risk assessment framework for exposure of cargo and ports to natural hazards and climate extremes’.

^26. Kum and Sahin, ‘A root cause analysis for Arctic Marine accidents from 1993 to 2011ʹ.

^27. AGCS, Safety and Shipping Review, Fedi et al, Fu et al, Kum and Sahin, Loughnane et al., ‘Arctic tanker risk analysis project’, Tikka et al., ‘Tanker design considerations for safety and environmental protection of Arctic waters: Learning from past experience’.

^28. Bai, ‘The IMO Polar Code: the emerging rules of Arctic shipping governance’, Bognar, ‘Russia and the polar marine environment: The negotiation of the environmental protection measures of the mandatory Polar Code’, Brigham, ‘An international polar navigation code for the twenty-first century’, Jensen, Kikkert.

^29. Fedi and Faury, Henriksen, Scassola, ‘An International Polar Code of Navigation: Consequences and Opportunities for the Arctic’, Sun and Beckman, The Development of the Polar Code and Challenges to Its Implementation.

^30. Fedi et al.

^31. Sun and Beckman.

^32. Kirchner, ‘Beyond the polar code: enhancing seafarer safety along the Northern sea route’.

^33. Dalaklis et al, Sun and Beckman, Fedi, The Polar Code (r)evolution? Arctic shipping law: from atomised legislations to integrated regulatory framework, Fedi et al, Fedi and Faury, Scassola, Bartenstein and Chircop.

^34. Brigham, The Changing Maritime Arctic and New Marine Operations, Browning, What Does the Polar Code Mean for Arctic Ship Monitoring? .

^35. Sun and Beckman.

^36. Excluded from the regulation are warships and troopships, cargo ships of less than 500 tons gross tonnage, ships not propelled by mechanical means, wooden ships of primitive build, pleasure yachts not engaged in trade and fishing vessels (SOLAS, Chapter I – General Provisions – Part A – Application, Definitions). Ibid.

^37. ‘In the South, all waters south of 60 ° S are covered, while the geographical scope is more limited in the Arctic. There the southern limit of the Polar Code in principle also follows 60 ° N, with the exceptions of a series of lines from 58 ° N 42 ° W (south of Cape Farewell), between Iceland and Greenland, roughly along Jan Mayen and Bjørnoya to the Russian cape of Kanin Nos, about 200 nautical miles east of Murmansk […] arguably because they benefit from warmer temperatures due to the Gulf Stream’ Kirchner, 367.

^38. Snider, A mandatory Polar Code – How does it affect shipping?

^39. Dawson, 489.

^40. Ghosh and Rubly, ‘The emergence of Arctic shipping: issues, threats, costs, and risk-mitigating strategies of the Polar Code’, Wanerman, ‘Freezing out noncompliant ships: why the Arctic Council must enforce the Polar Code’.

^41. Bartenstein, ‘Between the Polar Code and Article 234: The Balance in Canada’s Arctic Shipping Safety and Pollution Prevention Regulations’, Bartenstein and Lalonde, Chircop et al., ‘Canada’s implementation of the Polar Code’, Roach, The Polar Code and Its Adequacy, Sun and Beckman.

^42. Bognar, ‘Russian Proposals on the Polar Code: Contributing to Common Rules or Furthering State Interests?’, Bognar-Lahr, ‘In the Same Boat? A Comparative Analysis of the Approaches of Russia and Canada in the Negotiation of the IMO’s Mandatory Polar Code’.

^43. Chircop and Czarski, ‘Polar Code implementation in the Arctic Five: has harmonisation of national legislation recommended by AMSA been achieved?’.

^44. Todorov, ‘Coping with deficiencies in the Polar Code: a Russian perspective’, – .

^45. Vylegzhanin et al., ‘Navigation in the Northern Sea Route: interaction of Russian and international applicable law’, – .

^46. Bartenstein, ‘Between the Polar Code and Article 234: The Balance in Canada’s Arctic Shipping Safety and Pollution Prevention Regulations’, Fraser, A Change in the Ice Regime: Polar Code Implementation in Canada

^47. Kobzeva, ‘Strategic partnership setting for Sino-Russian cooperation in Arctic shipping’, Gao and Erokhin, ‘China-Russia collaboration in arctic shipping and maritime engineering’, – .

^48. Polar Code, note 1, Introduction, Article 1.

^49. Polar Code, note 1, Part I-A, Regulations 1.3.1 and 1.3.2

^50. Polar Code, note 1.

^51. Stoddard et al., ‘Making sense of Arctic maritime traffic using the Polar Operational Limits Assessment Risk Indexing System (POLARIS)’.

^52. Possibility explicitly provided for by Polar Code, Part I-A, Regulation 1.3.4.

^53. Polar Code note 1, Part I-A, Chapter 2.

^54. See note 15

^55. Transport Canada, New Arctic Shipping Safety and Pollution Prevention Regulations.

^56. Polar Code, note 1, Part I-A, Regulation 1.3.4

^57. UNCLOS, note 9, article 234. See also Bartenstein, ‘Between the Polar Code and Article 234: The Balance in Canada’s Arctic Shipping Safety and Pollution Prevention Regulations’.

^58. Parsons, Marine Insurance and the Polar Code.

^59. Lasserre et al., ‘Polar seaways? Maritime transport in the Arctic: An analysis of shipowners’ intentions II’.

^60. Denzin, The research act: a theoretical introduction to sociological methods.

^61. Hastings, Triangulation.

^62. Miles et al., Qualitative data analysis: a methods sourcebook.

^63. Paillé and Mucchielli, L’analyse qualitative en sciences humaines et sociales.

^64. Meho, ‘E-mail interviewing in qualitative research: A methodological discussion’.

^65. Arksey and Knight, Interviewing for Social Scientists, Baxter and Eyles, ‘Evaluating Qualitative Research in Social Geography: Establishing “Rigour” in Interview Analysis’, De Vaus, Surveys in social research, Hay, Qualitative research methods in human geography, McDowell, Interviewing: Fear and Liking in the Field.

^66. Lasserre, Arctic Shipping: A Contrasted Expansion of a Largely Destinational Market, Lasserre et al, Lasserre and Pelletier.

^67. Beveridge et al, Bourbonnais and Lasserre, ‘Winter shipping in the Canadian Arctic: toward year-round traffic?’, Guy and Lasserre, ‘Commercial shipping in the Arctic: new perspectives, challenges and regulations’.

^68. Krippendorff, Content analysis: an introduction to its methodology, Miles et al, Paillé and Mucchielli.

^69. Huang, RQDA R-based Qualitative Data Analysis. R package version 0.3–1.

^70. Arksey and Knight.

^71. Cho, Intercoder Reliability.

^72. Krippendorff, ‘Computing Krippendorff’s Alpha-Reliability’, –, ‘Estimating the Reliability, Systematic Error and Random Error of Interval Data’, –, ‘Reliability in Content Analysis: Some Common Misconceptions and Recommendations’, –, Content analysis: an introduction to its methodology.

^73. Lombard et al., ‘Content Analysis in Mass Communication: Assessment and Reporting of Intercoder Reliability’.

^74. Lasserre et al, Lasserre and Pelletier.

^75. European Company 1, interviewed on February 14 2019.

^76. Asian Company 1, interviewed on May 7, 2019.

^77. European company 2, Interviewed on 20 February 2018.

^78. Humpert, IMO Moves Forward with Ban of Arctic HFO But Exempts Some Vessels Until 2029, IMO Media Center, Sub-Committee on Pollution Prevention and Response (PPR 7), 17–21 February 2020.

^79. European company 3, Interviewed on 12 February 2018.

^80. American company 1, Interviewed on 2 May 2019.

^81. European company 4, Interviewed on 11 February 2019.

^82. European company 5, Interviewed on 21 December 2018.

^83. European company 5, Interviewed on 21 December 2018.

^84. European company 6, Interviewed on 30 January 2019

^85. European company 7, Interviewed on 23 February 2018.

^86. Asian company 2, Interviewed on 30 May 2019.

^87. American company 2, interviewed on 14 May 2019.

^88. Asian company 3, interviewed on 21 May 2019.

^89. Asian company 4, interviewed on 19 May 2019.

^90. European Company 8, interviewed on 5 February 2019.

^91. European company 9, interviewed on 6 February 2019.

^92. European company 3, interviewed on 12 February 2018.

^93. European company 5, interviewed on 21 December 2018.

^94. Asian company 5, interviewed on 5 April 2019.

^95. European company 2, Interviewed on 20 February 2018.

^96. American company 2, interviewed on 14 May 2019.

^97. European company 3, interviewed on 12 February 2018.

^98. American company 1, Interviewed on 2 May 2019.

^99. Beveridge et al, Dawson, Lasserre, ‘Case studies of shipping along Arctic routes. Analysis and profitability perspectives for the container sector’, –, ‘“Case studies of shipping along Arctic routes. Analysis and profitability perspectives for the container sector” [Transport. Res. Part A Pol. Pract. 66 (2014) 144–161]: A rejoinder’, Leppälä et al.

^100. Lasserre, ‘Simulations of shipping along Arctic routes: comparison, analysis and economic perspectives’, Sarrabezoles et al.

^101. Beveridge et al, Doyon et al., ‘Perceptions et stratégies de l’industrie maritime de vrac relativement à l’ouverture des passages arctiques’, Lasserre, Arctic Shipping: A Contrasted Expansion of a Largely Destinational Market.

^102. Bourbonnais and Lasserre, Lasserre, Arctic Shipping: A Contrasted Expansion of a Largely Destinational Market, Eguíluz et al., ‘A quantitative assessment of Arctic shipping in 2010–2014ʹ.

^103. Fedi, Fedi et al.

^104. Lasserre et al.

^105. Bartenstein, Les pouvoirs du Canada de protéger le milieu marin dans l’archipel arctique, Lasserre, ‘La navigation dans l’Arctique 2019: l’épreuve de la réalité’, Lasserre and Faury.

^106. AMAP, Snow, Water, Ice and Permafrost in the Arctic (SWIPA) 2017.

Additional information

Funding

This research was made possible thanks to a research grant awarded by Canada’s Social Sciences and Humanities Research Council (number CH115728).