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08 April 2020
Similar to many other countries in the world, Colombia is now facing an important challenge to contain the COVID-19 outbreak. However, local authorities have found themselves facing the same dilemma that the pandemic is causing everywhere: how to protect public health while at the same time maintaining the operation of commercial activities and the flow of necessary goods to the greatest extent possible.
Colombia, like many other jurisdictions, has been following parameters designed by the International Maritime Organisation (IMO) at the international level. The IMO has developed recommendations particularly through Circular Letter 4204 and its different amendments. The IMO has also emphasised the importance of adopting measures without causing "unnecessary restrictions or delay" to operations and considering the "close cooperation among all member states"(1) in dealing with this crisis.
The Colombian National Maritime Authority (DIMAR) has been following this guidance and different regulations have been issued at the domestic level – in particular, DIMAR's Circular CR-20200006 of 30 January 2020, Circular CR-202000 of 14 February 2020 and Circular CR-20200039 of 17 March 2020.
Circular CR-20200006 highlights the importance of "coordinating [actions] with the sanitary authority in order to adopt the best decisions to avoid unnecessary delays to ships and stigmatization of crew members and cargoes".(2)
Further, said circular establishes that ships coming from China (or that have called at any Chinese port within their last 10 visited ports) must maintain constant communication with the ship's agent and the master must send the ship's agent a maritime declaration of health before its arrival which must be issued not more than three hours before arrival at the respective port. Once they have reached the sea buoy or entrance to the control area, vessels must report any changes that have occurred to the health conditions of crew.
The circular also establishes that once said pre-arrival analysis has been completed, ships must be notified to proceed to the designated quarantine area if there is any suspicion that it may carry COVID-19. Additionally, the circular provides that if a person with suspicious symptoms is detected during a vessel's visit, a decision must be made as to whether to order the ship to be quarantined. Lastly, the circular at the time clarified that the same procedure could be applied to ships coming from other countries if a coordinated evaluation so suggested.
In the more recent Circular CR-20200039, "complementary measures" were also adopted. In particular, reference was made to the need to adopt at the local level procedures as per IMO Circular Letter 4204 (Add 3). The circular, among other measures, establishes for cargo vessels that only the pilot, members of the team that carry out the official arrival visit, designated terminal personnel related to port operations and other authorities in compliance with biosecurity measures determined by the health authorities can board vessels. Ships are prohibited to embark, disembark or change crew members while in port, except in cases of medical emergency, as deemed by the health authorities or in force majeure events.
Notably, DIMAR's circulars were issued before the IMO's recent addition to Circular Letter 4204 (Add 6), which specifically deals with a preliminary list of recommendations for governments and relevant national authorities on the facilitation of maritime trade during the COVID-19 pandemic.
In particular, this IMO circular letter stressed that "emergency measures aimed at protecting health will be targeted, proportionate, transparent and temporary". Among other considerations, with regard to port berths the circular letter specifies that:
governments and national authorities are strongly encouraged to ensure that all visiting commercial ships continue to have access to berths in port and terminals, and that quarantine restrictions are not imposed on the ship itself which prevent access to a berth and the timely discharge and/or loading of cargoes or other critical activities.(3)
Some could construe DIMAR's circulars in a way in which where there is any suspicion of COVID-19 on a ship it should automatically proceed to quarantine. However, it seems that the circulars should be interpreted in light of the IMO's new recommendation for governments and national authorities in which a specific call is being made for them not to "quarantine the vessel itself".
It thus seems that measures (such as the quarantine for the vessels involved) should be adopted only in light of the specific circumstances of each case, acting in a rational manner. Fortunately, in Colombia DIMAR's Circular CR-20200039 leaves the door open to port masters to evaluate the situation on a case-by-case basis and even gives room not to apply the measures contained in the circular or to adopt different type of decisions (which should be construed to include measures contained originally in Circular CR-20200006, ie, quarantine). The circular states in this regard that:
Port Captains must evaluate the specific situations implying fortuitous or force majeure events that exceptionally [lead to] not applying any of the measures that have been established in this Circular… Likewise, in special circumstances they may apply additional measures that are considered appropriate within the emergency that has been established at the national level.(4)
This is an important possibility that empowers port masters to take measures on a case-by-case basis departing from the analysis of the particular circumstances surrounding each situation. This approach should be preferred to the one which suggests that quarantine is always the solution.
For further information on this topic please contact Javier Franco at Franco & Abogados Asociados by telephone (+57 1703 5633) or email (firstname.lastname@example.org). The Franco & Abogados Asociados website can be accessed at www.francoabogados.com.co.
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