1 judicial training and research on eu crimes against environment and maritime pollution lecce,...

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Judicial Training and Research on EU crimes against environment and maritime pollution

Lecce, 27/06/2012

Ship source pollution: Ship source pollution: compliance withcompliance with

MARPOL and Directive MARPOL and Directive 2005/35/EC on ship source 2005/35/EC on ship source pollutionpollution

Dr Malgorzata NesterowiczDr Malgorzata Nesterowicz

Regulations on ship source pollution

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1. International applicable requirements: Marpol Convention 1973/78 as amended (+Annexes)

2. Directive 2005/35 on ship source pollution and criminal penalties as amended by Directive 2009/123

3. Directive 2000/59 on port reception facilities

Ship source pollution •S

ome facts-S

inking of the Erika in December 1999 and of the Prestige in November 2002 highlighted the need to tighten the net in relation to ship-source pollution (three maritime safety packages)

-However, accidents are not the main source of pollution: most of it is the result of deliberate discharges (tank-cleaning operations and waste oil discharges).

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1. International applicable requirements: Marpol ConventionGeneral rules: •Annex I (prevention of pollution by oil) – any discharge into the sea of oil or oily mixtures from ships to which this Annex applies shall be prohibited.•Annex II (control of pollution by noxious liquid substances in bulk) – the discharge into the sea of substances in Category X/Y/Z/other, or of those provisionally assessed as such or ballast water, tank washings, or other residues or mixtures containing such substances shall be prohibited.

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1. International applicable requirements:

Marpol ConventionGeneral - Marpol Annex I

•General prohibition to discharge: - oil (petroleum in any form including crude oil, fuel oil, sludge, oil refuse and refined products) - oily mixture (means a mixture with any oily content)•Exceptions: when following conditions are met: - Regulation 34 (tankers) - Regulation 15 (ships ≥ 400 GT)

The oil residues that cannot be discharged into the sea shall be retained on board for discharge in port reception facilities

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Marpol ConventionFor oil tankers (Regulation 34):

Any discharge in a special area is prohibited

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Marpol ConventionFor ships above 400 gross tonnage not tankers (Regulation 15):

In a special area

(i) the ship is proceeding en route;

(ii) the oil content of the effluent without

dilution does not exceed 15 parts per million;

(iv) the oily mixture is processed through an oil

filtering equipment (with alarm mechanisms);

(v) the oily mixture does not originate from cargopump room bilges on oil tankers; and(vi) The oily mixture, in case of oil tankers, is not mixed with oil cargo residues

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Marpol ConventionGeneral – Marpol Annex I Special Areas – Regulation 1.11

•Mediterranean Sea area, •the Baltic Sea area•the Black Sea area•the Red Sea area•the ‘‘Gulfs area’’, •the Gulf of Aden area,•the Antarctic area and •the North-West European waters

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Marpol ConventionObligations for the Parties to Marpol Annex I

Regulations 15 and 34 (investigation)

•Whenever visible traces of oil are observed on or below the surface of the water in the immediate vicinity of a ship or its wake, Governments of Parties to the Convention should, to the extent they are reasonably able to do so, promptly investigate the facts bearing on the issue of whether there has been a violation of the provisions of regulations 15 and 34; •The investigation should include, in particular, the wind and sea conditions, the track and speed of the ship, other possible sources of the visible traces in the vicinity, and any relevant oil discharge records.

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Marpol ConventionExceptions: (Regulation 4)Regulations 15 and 34 shall not apply to:(a)the discharge into the sea of oil or oily mixture necessary for the purpose of securing the safety of a ship or saving life at sea; or(b)the discharge into the sea of oil or oily mixture resulting from damage to a ship or its equipment:

(i)provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the discharge; and (ii) except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result; or

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Marpol Convention

(c) the discharge into the sea of substances containing oil,

approved by the Administration, when being used for the purpose

of combating specific pollution incidents in order to minimize the

damage from pollution. Any such discharge shall be subject to the

approval of any Government in whose jurisdiction it is contemplated

the discharge will occur.

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Marpol ConventionGeneral - Marpol Annex II:

•General prohibition to discharge noxious liquid substancesdischarged from tank cleaning or deballasting operations grouped into various categories. 12


Marpol ConventionGeneral – Annex II: general prohibition, unless:

(a) the ship is proceeding en route at a speed of at least 7 knots in the case of self-propelled ships or at least 4 knots in the case of ships which are not self-propelled;(b) the discharge is made below the waterline, taking into account the location of the seawater intakes; and(c) the discharge is made at a distance of not less than 12 nautical miles from the nearest land in a depth of water of not less than 25 m.

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Marpol ConventionExceptions (regulation 3):

(a) the discharge into the sea of noxious liquid substances or mixtures containing such substances necessary for the purpose of securing the safety of a ship or saving life at sea; or(b) the discharge into the sea of noxious liquid substances or mixtures containing such substances resulting from damage to a ship or its equipment:

(i) provided that all reasonable precautions have been taken after the occurrence of the damage or discovery of the discharge for the purpose of preventing or minimizing the discharge; and

(ii) (ii) except if the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result;

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Marpol Convention

c) the discharge into the sea of noxious liquid substances or mixtures containing such substances, approved by the Administration, when being used for the purpose of combating specific pollution incidents in order to minimize the damage from pollution. Any such discharge shall be subject to the any Government in whose jurisdiction it is contemplated the discharge will occur.

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2. EU applicable requirements – Directive 2005/35 on ship source pollution and on the introduction of penalties, including

criminal penalties, for pollution offences

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2. EU applicable requirements – Directive 2005/35 on ship source pollution and on the introduction of penalties, including

criminal penalties, for pollution offencesBackground: transposing Marpol standards into compulsory EU law and complemented with appropriate penalties

•In line with Marpol discharge standards, definitions and exceptions;•However, Marpol rules largely ignored worldwide;•Implementation of Marpol rules shows discrepancies among EU MS; need for harmonisation especially in relation penalties which differ significantly among MS;

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2. EU applicable requirements – Directive 2005/35 on ship source pollution

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 March 2007 (amended by Directive 2009/123 – by 16 November 2010)

Framework Decision annulled by the ECJ

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EU applicable requirements – Directive 2005/35 on ship source pollution

General – purpose and scope (Art.1 and 3):

• Ship-source discharges of polluting substances (= substances covered by Marpol Annex I and II) are considered infringements (Dir. 2005/35) and in particular crimes (Dir. 2009/123) if committed with: - intent

- recklessly - or by serious negligence

• Applies irrespective of flag;• Applies to owner, master as well as any other person who is found responsible for the discharge (i.e. the owner of the cargo, the classification society or any other person involved)

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General – purpose and scope (Art.1 and 3) – cont.:

• Applies within internal waters (including ports), territorial sea, straits used for international navigation, EEZ of a MS, high seas• Directive does not apply to:

- warship- naval auxiliary - other ship owned or operated by a State and used, for the time being, only on government non-

commercial service.

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Obligations for Member States:

•Art. 4:

-Member States shall ensure that ship-source discharges of polluting substances, including minor cases of such discharges, are regarded as infringements if committed with: - intent, - recklessly or, - with serious negligence

-Each Member State shall take the necessary measures to ensure that any natural or legal person having committed such an infringement can be held liable therefore

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•Art. 5 - Exceptions-Generally, similar exceptions apply as the ones in Marpol Annex I and Annex II

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Amendment by Directive 2009/123:

•Art. 5a-Member States shall ensure that infringements are regarded as criminal offences. - minor cases, where the act committed does not cause deterioration in the quality of water, shall not be regarded as criminal offence; - repeated minor cases, that in conjuction result in deterioration in the quality of the water shall be regarded as a criminal offence;

•Art. 5bMember States shall ensure that any act of inciting, or aiding and abetting an offence committed with intent is punishable as a criminal offence

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Obligations for Member States (port state):

•Art. 6 – Enforcement with respect to ships in port

-In case of irregularities or suspicion that a ship has engaged in discharge of polluting substances when the ship is voluntarily within a port (or off shore terminal), the Member State of the port shall ensure an appropriate inspection

-If the inspection reveals facts that could indicate an infringement, the competent authorities of that MS and flag State shall be informed.

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Obligations for Member States (coastal state):

•Art. 7 – Enforcement with respect to ships in transit

-In case of suspected discharge of polluting substances in waters of a coastal State, but no port call in that MS:

- in case next port of call is in another MS: closely cooperate

in the inspection and in deciding on appropriate measures;

- if next port of call is outside the EU: necessary measures to

inform about suspected discharge and request the next port

State to take appropriate measures.-In case of clear, objective evidence that an infringement is

committed leading to major damage or threat the State shall take

proceedings, including detention of the ship.

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Obligations for Member States:

•Art. 8 – PenaltiesEach Member State shall take the necessary measures to ensure that infringements are punishable by effective, proportionate and dissuasive penalties.

•Art. 8 a - c amendment by Directive 2009/123- Separate provisions for natural and legal person.- Also imposing penalties on natural persons acting as an organ of the legal person or maintaing a leading position - Each Member State shall take the necessary measures to ensure that offences are punishable by effective, proportionate and dissuasive CRIMINAL penalties

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Court case

C-308/06, Intertanko and others v Secretary of Transport UK

Some questions:-Is Article 5(1) of the Directive invalid in so far as it excludes the application of the exceptions in Annex I Regulation 11(b) of MARPOL 73/78 and in Annex II Regulation (6)(b)?

-Does the use of the phrase “serious negligence” in Article 4 of the Directive infringe the principle of legal certainty, and if so, is Article 4 invalid to that extent?’

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Court case

C-308/06•Since the Community is Party to MARPOL 73/78, the mere fact that Directive 2005/35 has the objective of incorporating certain rules set out in that Convention into Community law is not sufficient to enable the ECJ review the directive’s legality in the light of the Convention.

•“Serious negligence (…) must be understood as entailing an unintentional act or omission by which the person responsible commits a patent breach of the duty of care which he should have and could have complied with in view of his attributes, knowledge, abilities and individual situation.” Therefore, general principle of legal certainty not infringed.

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Implementation – MS penalties

•Dobrudja, Bulgarian flag, pollution in French EEZ, July 2003, fine: 200 000 €•Zuara, Maltese flag, pollution in French EEZ, October 2004, fine: 400 000 €•Maersk Barcelona, Bahama flag, pollution in French EEZ, September 2005, fine: 800 000 € •Full City, Panama flag, pollution at the coast of Norway (over 1000 tons), July 2009, ship master convicted to imprisonment of 6 months and third officer on duty for 60 days.

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Implementation – EMSA involvement:

Art. 10 – accompanying measures

EMSA shall work with MS in developing technical solutions and providing technical assistance in relation to the implementation of the Directive, in actions such as tracing discharges by satellite monitoring and surveillance.

- Workshops- Study on the implementation- CleanSeaNet

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EMSA workshops

Implementation of ship source pollution Directive &Exchange of best practice in dealing with illegal discharges and the gathering of evidence

March 2007October 2007February 2011

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EMSA Clean Sea Net (CSN)

-Clean Sea Net is a service of EMSA delivering near real time satellite images and pollution alert services to MS helping them to monitor and detect illegal oil discharges in all European sea.-Segments can be acquired for segments from 200km long up to 1400 km and can be shared between MS-Together with information of SafeSeaNet about ships routes, a potential polluter can be tracked down-Each coastal state has access to the CleanSeaNet service through a dedicated user interface to view ordered images-Satellite pictures provided by CSN serve as first alert and can serve as evidence for a potential infringement and criminal offence as to enforce Directive 2005/35

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Implementation – EMSA Clean Sea Net (CSN)

Spill detected by CleanSeaNet (left). Same spill overlaid with SafeSeaNet information (right)

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Implementation – EMSA Clean Sea Net (CSN)

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Implementation – EMSA study on level of implementation of the Directive -September, 2011 Overview of national laws in MS, legal cases, best practices, etc. showed that application differs widely and in some MS jurisdiction the Directive was not applied yet•Study includes horizontal considerations:

- most countries already had provisions regarding MARPOLinfringements, but penalties mostly of administrative nature;- most MS also had already provisions in the criminal codes concerning environmental crimes for sanctioning discharging of polluting substances (land, air, water, sea included);- in some but not all countries additional amendments were made to comply with 2009 revision of the Directive.

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EMSA study cont.

•Criminal sanctions are most often applied only to pollution occurred within waters under state jurisdiction – territorial waters (as the penal code traditionally applies to that), while administrative fines are imposed for pollution in EEZ or in high seas. This is however not in line with Directive 2009/123•Until now, no known case of sanctions for pollution in high seas (so mainly EEZ, territorial seas and ports)•Majority of cases fines were imposed on shipowners or ships’s operator (companies) and the ship master. The few cases known of imprisonment involved ship master and first officer;•Fines differ very largely from country to country (max. fine in Italy is 80 000€, in France 15 million€) – concrete fine in Portugal in 2006 was 90.000€

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EMSA study cont.

•Measures of proof to prove pollution and link with suspected ship are individual matter of each MS depending on procedural law.•In general, variety of proofs is admissible: written statements, photographs, videos, SLAR, Infra Red, UV scanner, positioning navigation system, oil samples etc.•In Scandinavian countries oil sampling is very important.

N.B. EMSA study is available on request – contact us

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ANY QUESTIONS?

Thank you!

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1 judicial training and research on eu crimes against environment and maritime pollution lecce,...

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