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

1. Judicial Training and Research on EU crimes against environment and maritime pollution Lecce, 27/06/2012 Ship source pollution: compliance with MARPOL and Directive 2005/35/EC on ship source pollution Dr Malgorzata Nesterowicz

2. Regulationsonshipsourcepollution 1. International applicablerequirements: Marpol Convention 1973/78 as amended (+Annexes) 2. Directive 2005/35 onshipsourcepollutionand criminal penalties as amendedbyDirective 2009/123 3. Directive 2000/59 onportreceptionfacilities

3. Ship source pollution • Some facts • Sinking 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).

4. 1. International applicable requirements: Marpol Convention General 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.

5. 1. International applicable requirements: Marpol Convention General - 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

6. 1. International applicable requirements: Marpol Convention For oiltankers (Regulation 34): Any discharge in a special area is prohibited

7. 1. International applicable requirements: Marpol Convention For shipsabove 400 gross tonnagenottankers (Regulation15): 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 cargo pump room bilges on oil tankers; and (vi) The oily mixture, in case of oil tankers, is not mixed with oil cargo residues

8. 1. International applicable requirements: Marpol Convention General – 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

9. 1. International applicable requirements: Marpol Convention Obligations 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.

10. 1. International applicable requirements: Marpol Convention Exceptions: (Regulation 4) Regulations 15 and 34 shall not apply to: • 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 • 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) exceptif the owner or the master acted either with intent to cause damage, or recklessly and with knowledge that damage would probably result; or

11. 1. International applicable requirements: 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.

12. 1. International applicable requirements: Marpol Convention General - MarpolAnnex II: • General prohibition to discharge noxious liquid substances discharged from tank cleaning or deballastingoperations grouped into various categories.

13. 1. International applicable requirements: Marpol Convention General – 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.

14. 1. International applicablerequirements: MarpolConvention Exceptions (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: • 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;

15. 1. International applicable requirements: 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.

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

17. 2. EU applicable requirements – Directive 2005/35 on ship source pollution and on the introduction of penalties, including criminal penalties, for pollution offences Background: transposingMarpol standards intocompulsory EU lawandcomplementedwithappropriatepenalties • In linewithMarpoldischarge standards, definitionsandexceptions; • However, Marpol rules largelyignoredworldwide; • ImplementationofMarpol rules shows discrepanciesamongEU MS; need for harmonisationespecially in relationpenalties whichdiffersignificantlyamong MS;

18. 2. EU applicablerequirements – Directive 2005/35 onshipsourcepollution Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 1 March 2007 (amendedbyDirective 2009/123 – by 16 November 2010) Framework Decisionannulledbythe ECJ

19. EU applicablerequirements – Directive2005/35 onshipsourcepollution General – purposeand scope (Art.1 and 3): • Ship-sourcedischargesofpollutingsubstances (= substancescoveredbyMarpolAnnex I and II) are consideredinfringements (Dir. 2005/35) and in particular crimes (Dir. 2009/123) ifcommittedwith: - intent - recklessly - orbyseriousnegligence • Appliesirrespectiveofflag; • Appliesto owner, master as well as anyotherpersonwhoisfoundresponsible for thedischarge (i.e. theownerofthe cargo, theclassificationsocietyoranyotherpersoninvolved)

20. 2. EU applicable requirements – Directive 2005/35 on ship source pollution General – purposeand scope (Art.1 and 3) – cont.: • Applieswithininternalwaters (includingports), territorial sea, straitsused for internationalnavigation, EEZ of a MS, highseas • Directive does notapply to: - warship - naval auxiliary - othershipownedoroperatedby a Stateandused, for the time being, onlyongovernment non- commercialservice.

21. 2. EU applicable requirements – Directive 2005/35 on ship source pollution Obligations for MemberStates: • Art. 4: • MemberStatesshallensurethatship-sourcedischargesofpollutingsubstances, includingminor cases ofsuchdischarges, are regarded as infringementsifcommittedwith: - intent, - recklesslyor, - withseriousnegligence • EachMemberStateshall take thenecessarymeasures to ensurethatany natural or legal personhavingcommittedsuchaninfringement can beheldliabletherefore

22. 2. EU applicable requirements – Directive 2005/35 on ship source pollution • Art. 5 - Exceptions • Generally, similar exceptionsapply as theones in MarpolAnnex I andAnnex II

23. 2. EU applicablerequirements – Directive 2005/35 onshipsourcepollution AmendmentbyDirective 2009/123: • Art. 5a • MemberStatesshallensurethatinfringements are regarded as criminal offences. - minor cases, wheretheactcommitted does not cause deterioration in thequalityofwater, shallnotberegarded as criminal offence; - repeatedminor cases, that in conjuctionresult in deterioration in thequalityofthewatershallberegarded as a criminal offence; • Art. 5b Member States shall ensure that any act of inciting, or aiding and abetting an offence committed with intent is punishable as a criminal offence

24. 2. EU applicable requirements – Directive 2005/35 on ship source pollution Obligations for MemberStates (portstate): • Art. 6 – Enforcementwithrespect to ships in port • In case ofirregularitiesorsuspicionthat a shiphasengaged in dischargeofpollutingsubstanceswhentheshipisvoluntarilywithin a port (oroffshore terminal), theMemberStateoftheportshallensureanappropriateinspection • Iftheinspectionrevealsfactsthatcouldindicateaninfringement, thecompetentauthoritiesofthat MS andflagStateshallbeinformed.

25. 2. EU applicable requirements – Directive 2005/35 on ship source pollution Obligations for MemberStates (coastalstate): • Art. 7 – Enforcementwithrespect to ships in transit • In case ofsuspecteddischargeofpollutingsubstances in watersof a coastalState, butnoportcall in that MS: - in case nextportofcallis in another MS: closelycooperate in theinspectionand in decidingonappropriatemeasures; - ifnextportofcallisoutsidethe EU: necessarymeasures to informaboutsuspecteddischargeandrequestthenextport State to take appropriatemeasures. • In case of clear, objective evidencethataninfringementis committedleading to major damageorthreattheStateshall take proceedings, includingdetentionoftheship.

26. 2. EU applicable requirements – Directive 2005/35 on ship source pollution Obligations for MemberStates: • Art. 8 – Penalties EachMemberStateshall take thenecessarymeasures to ensurethatinfringements are punishablebyeffective, proportionateanddissuasivepenalties. • Art. 8 a - c amendmentbyDirective 2009/123 - Separateprovisions for natural and legal person. - Also imposing penalties on natural persons acting as an organ of the legal person or maintaing a leading position - EachMemberStateshall take thenecessarymeasures to ensurethatoffences are punishablebyeffective, proportionateanddissuasive CRIMINAL penalties

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

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

29. 2. EU applicable requirements – Directive 2005/35 on ship source pollution 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 masterconvicted to imprisonment of 6 months and third officer on duty for 60 days.

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

31. 2. EU applicable requirements – Directive 2005/35 on ship source pollution EMSA workshops Implementation of ship source pollution Directive & Exchange of best practice in dealing with illegal discharges and the gathering of evidence March 2007 October 2007 February 2011

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

33. 2. EU applicable requirements – Directive 2005/35 on ship source pollution Implementation – EMSA Clean Sea Net (CSN) Spill detected by CleanSeaNet (left). Same spill overlaid with SafeSeaNet information (right)

34. 2. EU applicable requirements – Directive 2005/35 on ship source pollution Implementation – EMSA Clean Sea Net (CSN)

35. 2. EU applicable requirements – Directive 2005/35 on ship source pollution Implementation – EMSA study on level of implementation ofthe 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 MARPOL infringements, 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.

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

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

38. ANY QUESTIONS? Thank you! Malgorzata.nesterowicz@emsa.europa.eu www.emsa.europa.eu