Ship Pollution [EU]
Prohibition of organotin compounds on ships
This regulation aims to prohibit organotin compounds (anti-fouling paints) on all ships entering port in the Community in order to reduce or eliminate the adverse effects of these products on the marine environment and human health.
Regulation (EC) No 782/2003 of the European Parliament and of the Council of 14 April 2003 on the prohibition of organotin compounds on ships [Official Journal L 115 of 9.5.2003].
Background
Based on the strategic objectives set out in the Commission White Paper on transport policy, the purpose of this Community regulation is to reduce the adverse effects on the environment caused by organotin compounds used on ships.
Organotin compounds are chemicals from anti-fouling paints used on boat hulls and nets. These surface coatings are designed to prevent the attachment of algae, molluscs and other organisms which slow down vessel speeds.
Organotin compounds pose a definite risk to aquatic fauna and flora. During the ’60s the chemical industry developed efficacious anti-fouling paints using metallic compounds, in particular the organotin compounds tributyltin (TBT) and triphenyltin (TPT).
These chemicals are highly toxic for sealife (larvae, mussels, oysters and fish). For this reason, they have been banned in many European countries, while several Community directives (Directive 76/769/EEC and the successive amendments thereto) provide for regular monitoring of organotin compound levels.
The International Maritime Organisation (IMO) International Convention on the Control of Harmful Anti-Fouling Systems (AFS Convention) adopted at an IMO diplomatic conference in October 2001 bans application of TBT coatings on ships with effect from 1 January 2003 followed, as of 1 January 2008, by the elimination of active TBT coatings from ships.
The AFS Convention will enter into force 12 months after at least 25 States representing 25% of the world’s merchant shipping tonnage have ratified it.
Considering that non-polluting substitutes are available today, the AFS Convention prohibits the use of all harmful organotin compounds in anti-fouling paints applied to ships. At the moment, only organotin compounds are banned, but the Convention will also establish a mechanism to prevent potential future uses of other harmful substances in anti-fouling systems, in line with the precautionary principle.
Content
The regulation directly imposes on shipowners detailed requirements which must be observed throughout the Community.
The regulation applies to:
- ships flying the flag of a Member State,
- ships not flying the flag of a Member State but operating under the authority of a Member State, and
- ships entering port in a Member State but not covered by the two previous points.
The regulation does not apply to any warship, naval auxiliary or other ship owned by a State and used on government service.
As from 1 July 2003, organotin compounds which act as biocides in anti-fouling systems may no longer be applied on ships flying the flag of a Member State. As from 1 January 2008 ships entering port in a Member State must either bear no coating of organotin compounds which act as biocides or must bear a second topcoat forming a barrier to prevent organotin compounds leaching from the non-compliant anti-fouling undercoat.
The regulation introduces a survey and certification system for ships flying the flag of a Member State. It stipulates that:
- ships of 400 gross tonnage and above must be surveyed, irrespective of the voyage;
- ships of 24 metres or more in length, but less than 400 gross tonnage, must simply carry a declaration of compliance with the regulation or with the AFS Convention. No particular survey or certificate is specified in the regulation to avoid overburdening the administrations in the Member States;
- no survey or certification is envisaged for ships of less than 24 metres in length, i.e. mainly pleasure craft and fishing boats.
As regards recognition of certificates and of statements of compliance:
- as from 1 July 2003, Member States must recognise any AFS certificate issued by or on behalf of a Member State;
- as from 1 July 2004, Member States must recognise any AFS statement of compliance issued on behalf of a Member State;
- as from 1 July 2003, Member States must recognise any AFS declaration.
By 10 May 2004 at the latest, the Commission must report to the European Parliament and to the Council on progress with ratification of the AFS Convention and, if necessary, propose amendments to speed up the process of reducing pollution by harmful anti-fouling compounds.
References
| Act | Date of entry into force |
Final date for implementation in the Member States |
| Regulation (EC) No 782/2003 | 10.05.2003 | – |
Ship-source pollution and criminal penalties
The European Union creates a legal framework for imposing penalties in the event of discharges of oil and other noxious substances from ships sailing in its waters.
ACTS
Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties, particularly criminal penalties, for infringements.
SUMMARY
The current legislation states that ship-source polluting discharges constitute in principle a criminal offence and according to the Directive this relates to discharges of oil or other noxious substances from vessels. Minor discharges shall not automatically be considered as offences, except where their repetition leads to a deterioration in the quality of the water, including in the case of repeated discharges.
The persons responsible for discharging polluting substances may be subject to criminal penalties, if they have acted with intent, recklessly * or with serious negligence. The act of inciting, aiding and abetting a person to discharge a polluting substance may also lead to criminal penalties.
The Directive applies to all types of vessels, irrespective of their flag. Polluting discharges are forbidden in:
- the internal waters, including ports, of a European Union (EU) country;
- the territorial waters of an EU country;
- straits used for international navigation subject to the regime of transit passage, as laid down in the 1982 United Nations Convention on the Law of the Sea;
- the exclusive economic zone (EEZ) of an EU country;
- the high seas.
Exceptions
This regime does not apply to discharges from warships or other ships owned or operated by a State and used only on government non-commercial service.
Exceptions to the ban on discharges of polluting substances may be applied where human safety or that of the ship is in danger.
Legal persons
Legal persons under private law * may be subject to criminal penalties if a natural person has committed a criminal offence for their benefit. This natural person may have acted either individually or as part of an organ of the legal person. They must have a leading position within the structure of the legal person.
The legal person is also responsible for offences committed by a natural person through oversight, specifically through a lack of supervision or control.
The liability of a legal person shall not exclude criminal proceedings against the natural persons involved.
Applying penalties
The national authorities shall ensure that effective, proportionate and dissuasive penalties are applied, including for minor offences. They shall cooperate when a vessel is found guilty of illegal discharging in their area of responsibility before the vessels calls at the port of another EU country.
Background
The sinking of the Prestige in November 2002 and of the Erika in December 1999 highlighted the need to tighten the net in relation to ship-source pollution. However, accidents are not the main source of pollution: most of it is the result of deliberate discharges (tank-cleaning operations and waste oil disposal).
These rules incorporate into Community law the 1973 International Convention on the Prevention of Pollution from Ships and its 1978 Protocol (Marpol Convention 73/78). This will make it possible to harmonise application of the provisions of this convention.
These two Conventions establish a two-tier liability system built upon:
- (limited) strict liability for the ship owner;
- a collectively financed fund which provides supplementary compensation to victims of oil pollution damage who have not obtained full compensation.
| Key terms |
| ·        Reckless action: action taken with the knowledge that it is likely to result in damage.
·        Legal persons under private law: all legal entities, such as undertakings, with the exception of States, public bodies and international public organisations. |
References
| Act | Entry into force | Deadline for transposition in the Member States | Official Journal |
| Directive 2005/35/EC | 30.9.2005 | 1.3.2007 | OJ L 255 of 30.9.2005 |
| Directive 2009/123/EC | 16.11.2009 | 16.11.2010 | OJ L 280 of 27.10.2009 |
Successive amendments and corrections to Directive 2005/35/CE have been incorporated in the basic text. This consolidated version is for reference purpose only.
Port facilities for ship-generated waste and cargo residues
This directive enhances the availability and use of port reception facilities for ship-generated waste and cargo residues.
Directive 2000/59/EC of the European Parliament and of the Council of 27 November 2000 on port reception facilities for ship-generated waste and cargo residues
The Directive pursues the same aim as the 73/78 Marpol Convention on the prevention of pollution by ships, which all the Member States have signed. However, in contrast to the Convention, which regulates discharges by ships at sea, the Directive focuses on ship operations in European Union ports. It addresses in detail the legal, financial and practical responsibilities of the different operators involved in delivery of ship-generated waste and cargo residues.
Ships
This Directive covers:
- all ships, whatever their flag, including fishing vessels and recreational craft, putting in at a Member State port, apart from warships and ships belonging to or operated by a State for non-commercial governmental purposes;
- all Member State ports.
Port reception facilities
Member States must ensure that port reception facilities are provided which meet the needs of the ships using them without causing abnormal delays. These facilities must be tailored to the size of the port and to the categories of ship calling there.
Waste reception and handling plans
A waste reception and handling plan must be drawn up in each port. These plans must be approved and assessed by the Member State it relates to. The plans must be re-approved at least every three years.
Notification
Captains of ships (other than fishing boats and recreational craft authorised to carry no more than 12 passengers) bound for a Community port are required to notify certain information, in particular the date and the last port in which ship-generated waste was delivered and the quantity of waste remaining on board.
Delivery of ship-generated waste
Unless exempted, all ships are required to deliver their ship-generated waste before leaving a Community port, unless the captain can prove that his vessel has adequate storage capacity. Ships which do not deliver their waste without providing valid reasons for exemption are not allowed to leave the port until such delivery has taken place.
Fees for ship-generated waste
Ports must establish cost recovery systems to encourage the delivery of waste on land and discourage dumping at sea. All ships calling at a Member State port will bear a significant part of the cost (which the Commission interprets as meaning at least 30%), whether they use the facilities or not. This cost recovery system comprises this built-in, fixed element and, possibly, a variable element according to the amount and type of waste actually delivered.
Inspections
Ships operating in an EU port may be inspected. There is a 25 % minimum inspection requirement. Inspections are carried out on ships which have not complied with the notification requirement and on those suspected of not having delivered their waste as a priority.
Where it is proven that a ship has put to sea without having delivered its waste and without benefiting from an exemption, the next port of call is alerted. Moreover, the ship will not be authorised to leave the second port without the situation having been assessed.
Accompanying measures
This Directive provides for a series of accompanying measures. In particular, it provides for ships that have been unduly delayed owing to the inadequacy of reception facilities, while they themselves meet the requirements to which they are subject, must receive compensation.
Evaluation
Every three years, Member States must send the Commission a status report on the implementation of the Directive, following which the Commission must submit an evaluation report on the operation of the system to Parliament and the Council.