The following article on legal responsibility during contactless bunkering operations at Singapore port amidst the Covid-19 pandemic has been written by Jonathan Tan 陈勇仁, Associate Director at Singapore-based specialist international shipping and commodity trading law firm Helmsman LLC; the write-up was made possible through an arrangement led by the Singapore Chamber of Maritime Arbitration (SCMA):

In January 2021, a cluster of COVID-19 cases linked to a bunker tanker NewOcean 6 was reported to have formed, with 10 crew members onboard having tested positive for the virus (as at 5 January 2021).

Since the NewOcean 6 cluster, the Maritime and Port Authority of Singapore (MPA) has introduced a slew of safety protocols designed to combat the spread of COVID-19. Amongst others, shipowners, agents and masters of vessels must ensure that all operations (including bunkering) are carried out ‘contactless’ or ‘contactless with segregation protocol’. Shore-based personnel (which would include bunker surveyors) who board visiting vessels must be on a 7-day Rostered Routine Testing (RRT) programme and must take an Antigen Rapid Test (ART) after disembarking. In addition, for bunkering operations, the shipowner, master or agent of visiting vessels and service providers involved must minimally ensure the following:

• Bunker barge crew must not board the visiting vessel;
• Visiting vessel’s crew must not board the bunker barge;
• Communicate and/or send documents (e.g. bunker delivery note) by telephone text or email;
• Visiting vessel’s crew to connect the hose at the vessel’s manifold; and
• Bunker surveyor must not board the bunker barge.
• Note: See MPA’s Port Marine Circular No. 31 of 2021 dated 14 July 2021

Shipowners and their local shipping agents need to stay up-to-date with the latest protocols / measures introduced by MPA, which are updated from time to time in light of the evolving COVID-19 situation, and continuously educate the Master and the crew of the visiting vessel.

These protocols are important – they minimise interaction between the visiting vessel’s crew, the bunker barge and bunker surveyor during the bunkering process. As MPA has stated in Port Marine Circular No. 31 of 2021, non-compliance may result in (a) a breach of the MPA (Port) Regulations or the COVID-19 (Temporary Measures) (Control Order) Regulations 2020; and (b) in the case of bunker suppliers, bunker craft operators and bunker surveyors, a breach of MPA’s licensing conditions.

Assuming that a crew member of the visiting vessel / bunker barge is infected with COVID-19 (and it can be proven that the virus was transmitted during the bunkering process), shipowners and bunker barge operators should, as a starting point, investigate whether the protocols laid down by MPA have been complied with. Under MPA’s protocols, the bunker surveyor boards the visiting vessel, and not the bunker barge; so the main contact point and risk of transmission appears to be between the crew of the visiting vessel and the bunker surveyor or vice versa.

MPA’s protocols arguably suggest that there is a duty of care (and a minimum standard of care) required from each of the various participants in the bunkering process. Therefore, if the protocols have been breached resulting in transmission of the COVID-19 virus, this may potentially lead to a claim in the tort of negligence against the non-compliant party by the affected party. Such a claim would be in addition to any regulatory action which may be taken by MPA against the non-compliant party. If the protocols had been duly observed in the bunkering process, it may be more difficult to argue that someone was at fault / negligent for the COVID-19 transmission; much will depend on the circumstances of the case, including how the virus was transmitted.

Jonathan Tan 陈勇仁,
Associate Director, Helmsman LLC
D:  +65 6950 8660
F:   +65 6950 8664
Email: jonathan.tan@helmsmanlaw.com

Photo credit: Manifold Times
Published: 23 July, 2021

This article is intended to provide general information only, and is not to be construed as or relied upon as legal advice. Although we endeavour to ensure that the information contained herein is accurate, we do not warrant its accuracy or completeness or accept any liability for any loss or damage arising from any reliance thereon. The information in this article should not be treated as a substitute for legal advice concerning specific situations. If you would like to discuss the implications of this article on your business or obtain legal advice, please do not hesitate to contact Helmsman LLC.