Are Laws Regulating Subsea Cables Outdated?
As published in the March Issue of SubTel Forum Magazine
By Nicholas Kazaz
March 29, 2022
Subsea cables enable our modern way of life, but the laws regulating them have not changed much for over a century.
Today's globalised world thrives on the transmission of data. From financial transactions to social media posts, the vast majority of international communications is transmitted by subsea telecommunication cables. Subsea cables, like all physical objects, are prone to damage. Accidents involving damage to subsea cables have the potential to cause disruption or – at worst – even disconnect parts of the global population, as the January 2022 volcanic eruption near the island of Tonga so vividly illustrated.
The first international telegraph cable was laid in 1850 between England and France. Whilst the installation of the first transatlantic subsea cable laid between Ireland and Newfoundland in 1858 failed, the second attempt in 1866 was permanently successful. In recent years, the number of cables has increased significantly: there are now over 400 cables, with the exact number changing as new cables are built and old cables decommissioned. The commercial landscape is changing, too. Whereas most cables are owned by telecommunications companies, businesses such as Google, Microsoft, and Meta have also started to invest in this industry.
After five weeks of disruptions, Tonga was finally able to restore its connectivity when the 827-km long fibre optic cable connecting the island to the rest of the world was repaired at the end of February 2022. There are several reasons why it took so long to make the cable functional. Aside from the technical complexities, vessels with cable repairing capacities are scarce. When the Hunga-Tonga-Hunga-Ha’apai volcano erupted, the closest cable repair vessel, “RELIANCE”, was stationed in Papua New Guinea – about 2,900 miles (4,700km) away. It took her 10 days just to arrive at the repair site.
This illustrates a long-standing issue that the subsea cable industry faces. Historically, more developed nations have been able to build up a relatively robust network of subsea cables compared to less developed nations. The UK, for example, is currently linked to the rest of the world by almost 60 subsea cables. There might be some light disruption if one of these cables is damaged, but it is difficult to imagine a scenario in which the whole of UK would be entirely cut off. Less developed regions may also rely on private investors to lay subsea cables, which affects the availability and cost of telephony and Internet access to their populations.
The reliance on subsea cables may also make them vulnerable to global and national security threats. In an incident which took place during the Egyptian Crisis in 2013, three divers allegedly attempted to cut the SEA-ME-WE 4 cable off the port of Alexandria, disrupting the speed of Internet in Egypt as well as other countries. More recently, Admiral Sir Tony Radakin – the head of the UK's armed forces – warned of increased Russian underwater activity. According to Sir Tony, any attempt by Russia to damage the subsea cables could be considered an “act of war”.
Causes of damage
Cable damage caused by natural disasters such as the volcanic eruption near Tonga is rare, but its effects can be significant. In December 2006, a devastating earthquake near Hengchun, Taiwan severed eight subsea cables. Connectivity in Asia was severely disrupted in the aftermath. Apart from earthquakes and tsunamis, other natural causes of subsea cable damage include undersea landslides, ocean currents and shark attacks.
Nevertheless, human activity accounts for about 70% of cable damage incidents. Apart from the intentional damage mentioned above, disruptions are most often caused by fishing trawlers and ship anchors.
In 2008, 75 million people were left with limited internet connectivity after a vessel trying to moor off Alexandria, Egypt reportedly damaged the FLAG Europe Asia (FEA) and SEA-ME-WE 4 cables.
More recently, in August 2021, a containership reportedly damaged the Australia Singapore Cable (ASC) near the West Australian Coast. The vessel had been anchored close to the protection zone in the vicinity of the ASC. As a result of high winds, she dragged her anchor through the area and caused damage of approximately $1.5 million.
Damage likely caused by a vessel's anchor was also reported in February 2022 after the TW1 cable was cut off Karachi, Pakistan.
Unknown human activity has also been established as the cause of damage to a subsea cable connecting Svalbard with mainland Norway in January 2022.
Damage to subsea cables caused by human actions – whether intentional or innocent – is far from uncommon. This is the case even though all subsea cables are marked on nautical charts and mariners are therefore able to avoid anchoring on or near them. The claims resulting from such damage are often high value and it is in this setting that international regulations come into play.
The Convention for the Protection of Submarine Telegraph Cables (the Convention) was adopted by the UK through the Submarine Telegraph Act 1885, and it currently has 36 party states, with Algeria being the latest country to ratify the Convention in 1976. The Convention regulates – for those states which are a party to it – the protection of submarine cables, and applies to all legally established submarine cables landed on the territories, colonies or possessions of a party state.
Article II of the Convention makes it a “punishable offence” to “break or injure a submarine cable, wilfully or by culpable negligence, in such manner as might interrupt or obstruct telegraphic communication“. Such punishment is without prejudice to any civil action for damages. The party states are obliged by Article XII to establish enforcement of the Convention in their national legislations.
Importantly, under Article VIII of the Convention, only the flag state (i.e., the country in which a vessel is flagged) can take action against an infringing vessel and her crew.
Article IV states that cable owners who damage another cable in the course of laying or repairing their own cable must bear the cost of repairs; and under Article VII shipowners of vessels that sacrificed an anchor or other equipment to avoid damaging a subsea cable are eligible for compensation from the owner of that cable.
The Convention was adopted in a world that was different compared to the reality today. The number of cables connecting the international community in 2022 is much greater compared to the number of cables laid in 1884. Globalisation and modernisation of maritime transport have also led to a greater number of vessels sailing, which increases the risk of subsea cable damage occurring.
The 1982 United Nations Convention on the Law of the Sea (UNCLOS) addresses the laying and protection of subsea cables. For example, Article 79 gives all party states the right “to lay submarine cables … on the continental shelf“. In doing so, party states should have “due regard to cables … already in position.” The impact of UNCLOS on claims is, however, also potentially limited. Article 113 requires party states to enact laws that criminalise the breaking of subsea cables by vessels flying their flag. In reality, however, this obligation has not been fulfilled by many of the states and the most common penalty internationally is a fine.
Cable damage claims
Cable operators who wish to bring a claim against shipowners for cable damage must navigate the obstacles brought by multiple and diverse national legal systems. As the first step, the cable operator wishing to bring a claim must establish which country has jurisdiction to hear the dispute. This will be determined by the rules of private international law. If the prospective defendant is domiciled in an EU member state or a state that acceded to the Lugano Convention, the general rule is that the action should be brought against it in the country where it is domiciled. In the UK, matters are further complicated by the implications of Brexit. As the UK is no longer a member of the EU, the Brussels Regulation (Recast) which provides a framework for determining jurisdiction no longer applies. In addition, in 2021 the European Commission formally blocked the UK's application to accede to the Lugano Convention. In these circumstances, it seems that the English Admiralty court will only have jurisdiction if the damage to the subsea cable occurs in UK territorial waters, or if the claim is brought on an in rem basis, or some Act of Parliament or other regulations explicitly gives jurisdiction to the English court. It is also open to the parties to agree to English jurisdiction.
This jurisdictional uncertainty brings about a number of difficulties. First, a cable operator who wishes to bring a claim must consider from the outset how to present that claim in the most advantageous way to it. Depending on which court or courts have jurisdiction to hear the dispute, the cable operator will need to develop an appropriate case strategy. Second, the jurisdictional uncertainty may make it difficult for cable operators to ascertain the likelihood of potential recovery against a shipowner. Finally, the applicable jurisdiction in which the shipowner is located may impact upon the success of any enforcement efforts.
In defending a claim, a shipowner may rely on tonnage limitation to limit its liability based on the gross tonnage of the vessel. Where a vessel causes damage to a subsea cable, the maximum liability of a shipowner will be calculated in accordance with Article 9 of the Convention on Limitation of Liability for Maritime Claims 1976, as amended by the 1996 Protocol. Cable operators are likely to find it very difficult to avoid the consequences of tonnage limitation, particularly because it is extremely difficult to break limits.
Both cable operators and shipowners should consider carefully with their legal advisors the optimum approach to pursuing or defending (as the case may be) a cable damage claim, which will require a multi-jurisdictional and nuanced approach, always on a case-by-case basis.
The laws governing subsea cables are limited in their application, given that the Convention has only been acceded to by 36 party states, and otherwise sovereign states regulate the protection of subsea cables by the enactment of their own national laws. From a UK perspective, one of the recommendations in a 2017 report by UK MP Rishi Sunak was to “strengthen international law protecting cables“. Certainly, the international community of cable owners and operators would benefit from increased international regulation, bearing in mind the vital importance of telecommunication cables to modern economies and states. Indeed, it may be time for the international community to agree on regulations that would protect subsea cables and give more certainty to those who operate them. Until such time as there is increased regulation, claims involving subsea cable damage will continue to be complex and multi-jurisdictional in their scope.
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Nicholas Kazaz is an experienced international commercial dispute resolution lawyer at international law firm, HFW, with experience of resolving disputes of subsea cable damage. Among others, he acts for and advises cable owners and operators, shipowners, energy companies, contractors, and insurers/P&I Clubs. Nicholas is qualified in England & Wales. Any views or opinions expressed in this article are personal and belong solely to the author.