UK: Radiation Risk In Japan: Continued Concern Leads To Precautionary Measures In The Shipping Industry

Last Updated: 28 April 2011
Article by Nick Burgess and David Richards

In the aftermath of the Japanese tsunami and the resultant damage to the Fukushima nuclear power station, international concern continues in respect of the potential implications for vessels trading to Japanese ports, including for the health and safety of their crew. As at mid-April, the Japanese authorities confirmed that all international seaports that had not been damaged by the earthquake and tsunami were operating normally and that no health risk had been detected around those ports. The Japanese authorities have also introduced a system of issuing certificates showing radiation readings on vessels and containers departing from Japanese ports.

The European Union

Nonetheless, the European Union's declared stance has been to exclude any risk, no matter how minimal. To this end, in mid-April, the European Union executive called on all European ports to check radiation levels on all vessels coming from Japan to establish whether they exceed a proposed new radiation limit of 0.2 microsieverts per hour above normal levels. In the European Union, the normal level of radiation (in other words, radiation absorbed naturally from the environment) is around 0.1 microsieverts per hour. Where a port authority in a Member State detects radiation levels above the new threshold, it should inform the European Commission and the vessel in question should be thoroughly washed. Radiation can generally be washed from vessels with soap and water, thereafter posing no health risk.

Although the European Commission's proposal is not binding and EU Member States will have to decide individually whether to comply, the announcement is significant particularly in that it was made a day after the first vessel sailing from Japan following the fallout at Fukushima arrived at Rotterdam. The vessel had already passed a radiation screening test at the English port of Felixstowe. The vessel was given the all clear after no abnormal signs of radiation were found within the 380 containers originating from Japan, although Rotterdam port will conduct its own radiation screening procedures. Rotterdam is Europe's largest container point and it had already announced its intention to screen vessels for radiation while they were still at sea. Although the port authorities at Rotterdam have stated that they do not expect to find levels of radiation above what is permitted, nonetheless they intend to carry out their radiation scans before allowing any potentially affected vessels to enter the port.

Belgium has also announced that any vessels arriving from Japan at Antwerp or other Belgian ports will be subject to government-sanctioned radiation checks. The country-wide measures were introduced after Antwerp was already conducting unilateral checks, partly to allay the concerns of those working in the port and performing cargo operations. Containers entering Antwerp are in any event scanned for radioactivity on a daily basis since the 9/11 attacks in the US. The first vessel to arrive in Zeebrugge from Japan on 12 April revealed no sign of abnormal radiation levels. However, the Belgian Federal Agency for Nuclear Control has stated that it will continue to carry out checks of vessels and their cargo while the vessels are at sea. The Agency says it does not expect that its protective measures will disrupt cargo operations.

Britain also declared its intention to introduce random spot checks for radiation on vessels calling at UK ports from Japan after 11 March 2011. However, the Department of Transport has not confirmed the proportion of vessels that the UK Maritime and Coastguard Agency will test, although the vessels that have so far been selected for sampling had all called at Tokyo Bay ports between 11 and 19 March.

In the German port of Hamburg, Europe's third biggest container port, the Interior Ministry is liaising with the port authorities and customs to come up with a unified plan for dealing with potentially contaminated vessels. However, most vessels from Japan will generally call at another port, such as Rotterdam in Europe or Hong Kong in Asia, before calling at Hamburg and will therefore have already been screened en route.

China and the MOL Presence

The container vessel MOL Presence was turned away from Xiamen, China, in March when the local port authorities detected an "abnormal" radiation reading of 3.5 microsieverts per hour. This was the first vessel to be prevented from unloading its cargo at a foreign port following the Fukushima incident. The local authorities decided that the vessel should be cleaned before any cargo operations could commence at Xiamen port. Instead, the vessel returned to Kobe port, where the radiation levels measured were said to be significantly lower than those detected in China, according to the vessel owners. The vessel has since received permission to call at Hong Kong after passing the radiation level checks conducted by the Hong Kong authorities.

As at time of writing, there are no other reported incidents of vessels having been refused entry to foreign ports as a result of radiation concerns.

It is also reported that Shanghai's Maritime Safety Authority will not allow ships arriving from Japan to deballast in the port unless they have changed ballast water at sea.

Charterparty radiation clauses and allocation of risk

Since 11 March, ship-owners have been calling for a "radiation" clause that can be incorporated into charter-parties. Such a clause would be "owner-friendly" in the sense that it would require charterers to nominate a safe port in the event that a discharge port was declared unsafe due to abnormally high radiation levels. The clause would also allocate the risk of deviation costs to charterers. At the same time, owners would have the right to divert cargoes away from Japanese (or other) ports if radiation levels were considered to be above acceptable levels. As at time of writing, BIMCO is expected to publish a radiation clause for use in charterparties, which is expected to be "owner-friendly".

The Charterers' P & I Club has already prepared a charterparty clause for the benefit of its members who wish to deal with the Japanese situation by way of a specific rider clause in their charterparties. The draft wording of the proposed clause incorporates a warranty by the owner that the vessel has not called at or off any Japanese ports since 11 March or traded in waters or an atmosphere that may subject the vessel concerned to nuclear contamination. Furthermore, in circumstances where the vessel and / or her crew and / or cargo are found to have been affected by radiation, owners are to be liable to indemnify charterers for the resulting loss (including from delay), damage and any other liability or expense that charterers sustain.

Clearly, any such clauses will not affect existing charterparties and the rights and obligations of the parties under those charters, including safe port warranties, indemnities for following voyage orders, liability for delay and for dangerous goods.

Market considerations

Apart from the clauses referred to above, some owners will have been negotiating with prospective charterers to include bespoke clauses in their future charterparties which allocate risk in respect of radiation. It remains uncertain whether charterers will accept a clause that has been drafted on behalf of and to protect owners. Alternatively, whether owners will conclude fixtures to trade to Japan without such a protective clause being inserted, or even with a more charterer-friendly clause incorporated, into the charterparty may depend on the state of the market.

Shipping rates have seen a 55% rise for cargo to Japan, with Japan importing more raw materials so that it can rebuild its infrastructure and generate power. Japan is the world's largest importer of both liquefied natural gas and coal and it has been reported that Japan may be considering a move away from nuclear power to increasing production from its natural gas-fired and coal power plants. Owners are reported to have been seeking premiums of 2.5 to 10 Worldscale points to enter Japanese ports, according to London-based brokers. Where charterers agree to compensate owners generously for taking the risk, then it may be that owners will take a commercial view, weigh up the risks and forego insistence on a radiation clause in their charterparties. The potential costs involved where a ship is found to exceed acceptable radiation levels, if soap and water cleaning is insufficient, could be considerable. In view of this, Owners and Charterers may wish to consider carefully what risks they are prepared to undertake.

Nick Burgess is a partner and the head of the Ince & Co Japan team. David Richards is a solicitor at Ince & Co London and is also part of the Ince Japan team. Please contact either Nick or David in respect of any queries arising out of this article or in relation to legal issues concerning recent events in Japan generally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions