How Will Arctic Shipping Affect Maritime Law?

On October 5, law firm Verrill Dana and oceanographic organization MOTN will host a symposium on "Marine Technology and the North," timed to coincide with the international Arctic Council meeting in Portland, Maine.

The conference is intended to highlight the value of new marine technologies that are well-adapted to the Actic, but also to discuss polar politics, economic opportunities and legal considerations. 

MarEx spoke recently with Ben Ford, an admiralty lawyer with Verrill Dana and an organizer for the conference, on how the opening of the Arctic will affect shipping. 

How will maritime law evolve as the Arctic opens up? 

We'll likely see new environmental regulation for the Arctic, like restrictions on vessels' black soot emissions. Most of the activity is happening at a high international level – the new IMO Polar Code, for example, or Russia's claim to a larger outer continental shelf. Unfortunately the U.S. does not have a seat at the table for these developments because it has not ratified the United Nations Convention on the Law of the Sea.  

How can shipping companies expect their legal liabilities to change with Arctic operations?

We'll see how that plays out over the next few years – with remote locations, insurers' risks could be higher due to the difficulty of reaching a ship in a casualty. 

What does increasing Arctic activity mean for American vessel operators and the communities that depend on their services?

I think the first thing that comes to mind is the difficulty we have in getting enough ice class ship capacity. The Coast Guard only has one heavy icebreaker and they don't expect to have another for at least eight years, perhaps more – and there is a shortage of commercial tonnage as well. Back in 2012, Nome nearly ran out of fuel in the winter, and its harbor was frozen in. The government had to issue a Jones Act waiver for a Russian tanker to bring gasoline from Dutch Harbor because there were no U.S. vessels available to do it. I think we'll see more of that kind of situation as the Arctic develops economically. 

The Jones Act is critical to national security, and we need it to protect American shipyards. But if it were easier to use foreign ships where suitable American vessels are not available, foreign companies could serve the Alaskan Arctic today, with existing tonnage. This would give U.S. competitors the time needed to build a Jones Act ice-class fleet.

The Arctic Council will meet in Portland in October. What new developments can we expect to see from that meeting and from the Council's future work?

The Council is facilitating greater cooperation among the Arctic nations. I think the first thing you'll see is collaboration on search and rescue – getting SAR coverage in remote Arctic areas will be a joint effort. 

For the big picture, the key takeaway is that the international community has the opportunity to develop an entire new region with respect for the environment and for the native peoples who live there, in a manner that creates the most good for the least harm. We don’t often get a chance like that.

- MarEx