null  User manual
European
Maritime
Safety
Agency
Addressing
Illegal Discharges
in the Marine Environment
EUROPEAN MARITIME SAFETY AGENCY
Photo credits: © Irish Coast Guard – MCA 2009, © EMSA/MDA 2012
Foreword
Since Directive 2005/35/EC on ship-source pollution and on the introduction of penalties, including
criminal penalties, for pollution offences1 was adopted, progress has been made by Member States
in addressing illegal discharges in the marine environment.
However, despite increased surveillance and enforcement efforts, illegal discharges of oil and other
polluting substances still regularly occur in European waters, and the number of prosecutions
remains low. Recognising this, EMSA has undertaken a number of activities together with the
Member States, such as workshops and trainings.
One activity identified by stakeholders as useful was the drafting of a document to provide a
common overview of the enforcement chain from beginning to end. It was felt that a document
developed at the European level would build upon and complement tools and publications already
existing at a regional level. The Agency facilitated a Working Group for that purpose. This document,
Addressing Illegal Discharges in the Marine Environment, is the outcome.
This publication is intended to support authorities involved in the enforcement chain addressing
illegal pollution (e.g. surveillance operators, inspectors and investigators, Port State Control Officers,
law enforcement officials). It is recommended that readers familiarise themselves with the content
of the document to obtain a sense of how the various steps in the enforcement chain are
interdependent. However, the document has been developed so that each chapter can also be read
in isolation, and readers can quickly identify the specific information they require.
Maritime transport is by nature transboundary, and successful prosecution of polluters relies on
mutual understanding, exchange of information, and coordination between coastal, port and flag
States. EMSA, as an European Agency, is pleased to contribute to the common effort to promote
international cooperation in this field, with the ultimate goal of protecting the marine environment.
Markku Mylly
Executive Director
1
As amended by Directive 2009/123/EC.
i
Acknowledgements
The European Maritime Safety Agency (EMSA) would like to thank the many individuals and
organisations that contributed to the development of this document. In particular, the contribution
of the members of Working Group convened to draft the document is gratefully acknowledged as
follows:
Valeria Abaza
John Burke
Dario Cau
Barbara Dias
Kent Edlund
Catrin Egerton
Frédéric Hébert
Marc Journel
Emile Lindemulder
Malgorzata Nesterowicz
Jeremy Smart
Gonçalo Viegas
Daniel Warin
Black Sea Commission
European Commission (DG MOVE)
Italian Coastguard
Lisbon Agreement
Baltic Marine Environment Protection Commission/Helsinki
Commission (HELCOM)
European Maritime Safety Agency (EMSA)
Regional Marine Pollution Emergency Response Centre for the
Mediterranean Sea (REMPEC)
European Maritime Safety Agency (EMSA)
International Criminal Police Organization (INTERPOL)
European Maritime Safety Agency (EMSA)
North Sea Network of Investigators and Prosecutors
Lisbon Agreement
European Commission (DG MOVE)
Special acknowledgements are also due to the participants of the Workshop on Illegal Discharges, 45 June 2013, whose suggestions, comments and feedback on an earlier draft of the document were
greatly appreciated.
Disclaimer
This document is intended to provide useful information when addressing violations of MARPOL
regulations in Europe. The Guidelines were developed in the framework of European Member State
and EMSA activities in the field of improving the identification and pursuit of ships making unlawful
discharges and are intended to provide a general overview of issues related to illegal discharges in
the marine environment.
Under no circumstance does this document replace individual, legal or technical advice rendered
considering the individual circumstances of each case and situation. Under no circumstances shall
EMSA or any of the other contributors be liable for any loss, damage, liability or expense incurred or
suffered that is claimed to have resulted from the interpretation and the use of the information
presented herein.
ii
Table of Contents
Acknowledgements .......................................................................................................... ii
Disclaimer ........................................................................................................................ ii
List of figures, images and tables .......................................................................................v
List of acronyms and abbreviations ...................................................................................vi
Introduction ..................................................................................................................... 1
Part 1 – General Information ............................................................................................ 2
Chapter 1:
1.1
1.2
1.3
1.4
1.5
1.6
Legal background .......................................................................................................... 2
International level ......................................................................................................... 2
Sea areas ...................................................................................................................... 9
EU law ........................................................................................................................ 13
Regional instruments .................................................................................................. 16
National level .............................................................................................................. 16
Chapter 2:
2.1
2.2
2.3
2.4
2.5
2.6
2.7
Pollution in the marine environment ...........................................................31
Pollution by oil – MARPOL annex I ............................................................................... 31
Pollution by noxious liquid substances in bulk – MARPOL annex II ................................ 34
Harmful substances carried by sea in packaged form – MARPOL annex III ..................... 34
Properties of hazardous and noxious substances (HNS) ................................................ 35
Sewage – MARPOL annex IV ........................................................................................ 38
Garbage from ships – MARPOL annex V ....................................................................... 38
Air pollution from ships – MARPOL annex VI ................................................................ 39
Chapter 4:
4.1
4.2
4.3
International cooperation ...........................................................................18
International Maritime Organization ........................................................................... 19
INTERPOL .................................................................................................................... 19
Aquapol ...................................................................................................................... 20
Regional Agreements and conventions ........................................................................ 20
Investigators and prosecutors networks....................................................................... 25
Memorandums of Understanding (MoU) on Port State Control .................................... 26
EMSA .......................................................................................................................... 29
Chapter 3:
3.1
3.2
3.3
3.4
3.5
3.6
3.7
Legal framework .......................................................................................... 2
Production of oily waste by vessels .............................................................40
How oily waste is generated ........................................................................................ 40
Illegal disposal of ship-generated and cargo wastes ..................................................... 43
Reasons illegal discharges occur .................................................................................. 44
Part 2 – The Enforcement Chain .......................................................................................48
Chapter 5:
5.1
5.2
The illegal discharge enforcement chain ......................................................48
Overview .................................................................................................................... 48
Overview of steps in the enforcement chain ................................................................ 51
iii
Chapter 6:
6.1
6.2
6.3
6.4
Oil versus other substances ......................................................................................... 52
Monitoring and Detection ........................................................................................... 52
Initial indication discovered at sea ............................................................................... 52
Initial indication obtained ashore ................................................................................ 57
Chapter 7:
7.1
7.2
7.3
7.4
7.5
Post-case actions ........................................................................................78
Fulfilling mandatory reporting obligations and voluntary reporting procedures ............ 78
Providing feedback across the enforcement chain ........................................................ 79
Disseminating information on particular lessons learnt or issues of interest ................. 79
Reviewing and improving existing procedures and updating guidance information ....... 80
Publicising information on the outcome of a case ........................................................ 80
Chapter 10:
10.1
10.2
10.3
10.4
Concluding the case ....................................................................................76
Assessment of actions to be taken ............................................................................... 76
Feedback .................................................................................................................... 77
Documenting the case comprehensively ...................................................................... 78
Chapter 9:
9.1
9.2
9.3
9.4
9.5
Collecting additional evidence .....................................................................60
Cooperation in the collection of evidence .................................................................... 60
Characterising the spill ................................................................................................ 62
Establishing the link with the polluter .......................................................................... 67
Proving intent, recklessness or serious negligence ........................................................ 71
Additional evidence to support the case ...................................................................... 74
Chapter 8:
8.1
8.2
8.3
Initial indication of a possible violation and decision to follow-up ...............52
Cooperation tools ....................................................................................81
EU Information systems .............................................................................................. 81
Manuals and procedures ............................................................................................. 85
List of contacts ............................................................................................................ 87
Standard forms for exchanging information ................................................................. 88
References ......................................................................................................................90
iv
List of figures, images and tables
Figure 1: Maritime zones as defined by UNCLOS ................................................................................... 9
Figure 2: MARPOL annex I: Special Areas ............................................................................................. 10
Figure 3: MARPOL annex IV: Special Areas ........................................................................................... 11
Figure 4: MARPOL annex V: Special Areas ............................................................................................ 11
Figure 5: Particularly Sensitive Sea Areas in Europe ............................................................................. 12
Figure 6: Regional Agreements ............................................................................................................. 21
Figure 7: Fate of oil spilled at sea showing the main weathering processes (Source: ITOPF) .............. 32
Figure 8: Marine pollutant symbol........................................................................................................ 34
Figure 9: Processes that can act on a chemical spill (Source: ITOPF) ................................................... 36
Figure 10: Flow chart of a joint European system for classification of chemical spills in water .......... 37
Figure 11: Sources of litter [Garbage from Ships]................................................................................. 39
Figure 12: A possible example of oily waste production and tank arrangements ............................... 42
Figure 13: Impact of wind on radar detections .................................................................................... 53
Image 1: Illegal discharge of a MARPOL annex II substance above the waterline ................................. 5
Image 2: Area covered by satellite versus area covered by aircraft during one flight hour ................ 54
Image 3: Picture showing clean water in front of the vessel with a slick behind ................................. 68
Image 4: CleanSeaNet evidence that a discharge took place within 12 nautical miles of the coast .... 69
Table 1: Bonn Agreement Oil Appearance Code .................................................................................. 63
v
List of acronyms and abbreviations
AIS
BA OAC
BSC
CEPCO
CILPAN
CIC
COW
CTG MPPR
DG ECHO
DG MOVE
EC
EEA
EEZ
EFTA
EMSA
ENPRO
EU
FSI
GESAMP
Gt
HELCOM
HNS
IMO
IOPP
LRIT
MARPOL
MEPC
MoU
NCB
NIR
Nm
NSN
OCM
OECD
OSPAR
OTSOPA
OWS
PRF
PPM
PSC
PSSA
REMPEC
SAR
SLAR
SRP
Thetis
UNCLOS
Automatic Identification System
Bonn Agreement Oil Appearance Code
Black Sea Commission
Co-ordinated Extended Pollution Control Operations
International Centre for Pollution Response in the North East Atlantic
Concentrated Inspection Campaign
crude oil washing
Consultative Technical Group for Marine Pollution Preparedness and Response
European Commission Directorate General - Humanitarian Aid and Civil Protection
European Commission’s Directorate-General for Mobility and Transport
European Commission
European Economic Area
Exclusive Economic Zone
European Free Trade Association
European Maritime Safety Agency
Network of Prosecutors on Environmental Crime in the Baltic Sea Region
European Union
Flag State Implementation
Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection
Gross tonnes
Helsinki Commission, the governing body of the Helsinki Convention
Hazardous and Noxious Substances
International Maritime Organization
International Oil Pollution Prevention
Long Range Identification and Tracking
International Convention for the Prevention of Pollution from Ships
Marine Environment Protection Committee
Memorandum of Understanding on Port State Control
National Contact Bureaux (INTERPOL)
New Inspection Regime (PSC)
Nautical mile
The North Sea Network of Investigators and Prosecutors
Oil Content Meter
Organisation for Economic Co-operation and Development
Convention for the protection of the marine environment of the North Atlantic
Bonn Agreement's Working Group on Operational, Technical and Scientific
Questions concerning Counter Pollution Activities
Oil Water Separator
Port Reception Facility
Parts per million
Port State Control
Particularly Sensitive Sea Area
Regional Marine Pollution Emergency Response Centre for the Mediterranean Sea
Synthetic Aperture Radar
Side Looking Airborne Radar
Ship Risk Profile
The Hybrid European Targeting and Inspection System (Thetis), an EMSA managed
information system in support of the new Port State Control inspection regime
United Nations Convention on the Law of the Sea, 1982
vi
Introduction
In order to prevent pollution of the marine environment by polluting substances, discharges at sea
have been strictly regulated, mainly by the International Convention for the Prevention of Pollution
from Ships, 1973 as modified by the Protocol of 1978 (MARPOL 73/78). However, some vessels
continue to illegally discharge at sea in excess of the permitted limits or in areas where it is
prohibited.
At European level, many of the measures to be implemented in order to address illegal discharges
from vessels are outlined in Directive 2005/35/EC, as amended by Directive 2009/123/EC, on shipsource pollution and on the introduction of penalties, including criminal penalties, for pollution
offences. As recognised in the Directive, ‘The implementation of MARPOL 73/78 shows discrepancies
among Member States and there is thus a need to harmonise its implementation at Community
level.’
Enforcement actions in Europe have had limited results in terms of the number of cases prosecuted
and of the level of sanctions applied. Given the variety of legal systems and of operational practices
in place in the Member States, a vigorous and homogeneous enforcement of pollution regulations
across waters under the jurisdiction of EU Member States will require considerable effort. This will
often involve cooperation between States both in the European Union and outside.
This document has been structured in two parts. Part 1 provides background information for
developing a general understanding of ship-source pollution in the marine environment. It is
assumed that readers will not necessarily have extensive experience in the maritime sector, and
information is presented accordingly. In Part 2, a step-by-step overview is given from the initial
indication of a possible pollution offence onwards, to support authorities in identifying the most
effective actions depending on the particularities of the case and the national context.
The collection of evidence for proving violations requires access to various sources of information;
throughout, the document indicates how existing organisations and systems can be used to request,
receive, and exchange information. In order to avoid duplication of work and inconsistencies, and in
relation to topics that are more appropriately addressed at national or regional level, extensive
reference is made to relevant material produced by Regional Agreements, Networks of Prosecutors,
and other bodies.
Most initial efforts by authorities in charge of enforcing pollution regulations have been
concentrated on combatting pollution by oil. For this reason, the level of knowledge in this field is
more developed and techniques and procedures in place to deal with it are more advanced. This
document, which is built on existing bodies of knowledge, reflects this.
Much of the information contained herein is of general application and is not limited in terms of
geographical scope. However, some information is related exclusively either to particular bodies (e.g.
Regional Agreements; Paris Memorandum of Understanding) or to the EU context. In particular,
legal measures taken at European level to harmonise the enforcement of international regulations
addressing ship-source pollution apply only to European Union Member States. Information systems
developed in application of EU legislation are usually only accessible by EU Member States.
1
Part 1 – General Information
This part provides general information on the various aspects related with ship-sourced pollution
including the legal framework, the institutional context, pollution in the marine environment, and
the production of oily waste. It is intended to provide a brief overview of pertinent topics to
individuals who may not have had exposure to the full enforcement chain, for example, legal
prosecutors with no maritime background, marine surveillance officials who are not aware of the
range of cooperation channels at a European or global context.
Chapter 1: Legal framework
1.1 Legal background
At the international level there are two fundamental instruments that deal with certain aspects of
ship-source pollution: the 1982 United Nations Convention on the Law of the Sea (UNCLOS
Convention) and the International Convention for the Prevention of Pollution From Ships, 1973 as
modified by the Protocol of 1978 (MARPOL 73/78).
At the European level the relevant provisions of MARPOL are implemented by Directive 2005/35/EC
on ship-source pollution and on the introduction of penalties, including criminal penalties, for
pollution offences, as amended by Directive 2009/123/EC.
Some other EU Directives may be of supportive value for the enforcement of the prohibition of
illegal discharges, amongst others: 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, Directive 2010/65/EU of the European Parliament and of the Council of 20 October 2010 on
reporting formalities for ships arriving in and/or departing from ports of the Member States,
Directive 2002/59/EC of the European Parliament and of the Council of 27 June 2002 establishing a
Community vessel traffic monitoring and information system amended by Directive 2009/17/EC and
Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on Port State
Control.
1.2 International level
1.2.1
MARPOL: the International Convention for the Prevention of Pollution from Ships,
1973, as modified by the Protocol of 1978 (MARPOL 73/78)
The MARPOL Convention, adopted at the International Maritime Organization (IMO) in 1973 and
modified by the Protocol of 1978, deals with the prevention of pollution from ships and the
protection of the marine environment from discharges of harmful substances to the sea. It
establishes criteria for discharges at sea and also an obligation for the ship master to report any
pollution incident which is defined as ‘a discharge above the permitted level’. It also imposes a duty
to cooperate between States parties to the Convention in the sanctioning of such violations. In
particular, article 4 (4) of the Convention stipulates:
2
‘The penalties specified under the law of a Party pursuant to the present article shall be adequate in
severity to discourage violations of the present Convention and shall be equally severe irrespective
of where the violations occur.’
MARPOL includes six annexes:






Annex I containing Regulations for the Prevention of Pollution by Oil;
Annex II containing Regulations for the Control of Pollution by Noxious Liquid Substances in
Bulk;
Annex III containing Regulations for the Prevention of Pollution by Harmful Substances
Carried by Sea in Packaged Form;
Annex IV containing Regulations for the Prevention of Pollution by Sewage from Ships;
Annex V containing Regulations for the Prevention of Pollution by Garbage from Ships;
Annex VI containing Regulations for the Prevention of Air Pollution from Ships.
All annexes have been ratified by the requisite number of States (representing a gross tonnage of
more than 50%), and have therefore all entered into force. Annexes I and II of MARPOL have been
ratified by 152 states, representing 99.2 per cent of the world's shipping tonnage.2
For the purpose of this document and at its present stage the two first annexes are the most
relevant (as they concern prevention of pollution by oil and liquid noxious substances in bulk).
1.2.1.1 Annex I – Regulations for the Prevention of Pollution by Oil
Annex I, Regulation 15 provides that ‘any discharge into the sea of oil or oily mixtures from ships
shall be prohibited’. To this prohibition there are exceptions, both for discharges outside and inside
special areas. For example for a ship of above 400 tonnes, a discharge outside special areas is
possible if all the following conditions are satisfied:





the ship is proceeding en route;
the oily mixture is processed through an oil filtering equipment meeting the requirements of
regulation 14.7 of this annex;
the oil content of the effluent without dilution does not exceed 15 parts per million;
the oily mixture does not originate from cargo pump room bilges on oil tankers;
the oily mixture, in case of oil tankers, is not mixed with oil cargo residues.
Regulation 34 provides, similarly to regulation 15, that oil discharges from cargo areas of tankers are
prohibited, unless all the following conditions are satisfied:




the tanker is not within a special area;
the tanker is more than 50 nautical miles from the nearest land;
the tanker is proceeding en route;
the instantaneous rate of discharge of oil content does not exceed 30 liters per nautical mile;
2
Updated information on which states have ratified which annexes is provided regularly by the IMO:
http://www.imo.org/About/Conventions/StatusOfConventions/Documents/status-x.xls
3


the total quantity of oil discharged into the sea does not exceed for tankers delivered on or
before 31 December 1979, as defined in regulation 1 paragraph 28.1, 1/15,000 of the total
quantity of the particular cargo of which the residue formed a part, and for tankers delivered
after 31 December 1979, as defined in regulation 1 paragraph 28.2, 1/30,000 of the total
quantity of the particular cargo of which the residue formed a part;
the tanker has in operation an oil discharge monitoring and control system.
In relation to special areas any discharge into the sea of oil or oily mixture from the cargo area of an
oil tanker shall be prohibited.
Regulations 15 (D) of annex I provide that 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, a prompt investigation should
be undertaken, taking into account such elements as 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. This however does not apply to the situations when (as specified by Regulation 4):
(a) the discharge into the sea of oil or oily mixture was 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 resulted from damage to a ship or its
equipment:
(i)
provided that all reasonable precautions were 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
(c) the discharge into the sea of substances containing oil was approved by the Administration
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.
1.2.1.2 Annex II – Regulations for the Control of Pollution by Noxious Liquid Substances in
Bulk
Similar rules concern discharges of noxious liquid substances in bulk into the sea in annex II. There is
a general prohibition of discharge of such substances (in MARPOL they are grouped in four
categories), but there are also exceptions (see Regulation 13) which allow for discharges to take
place in particular circumstances (e.g. an exemption for a prewash may be granted by the
Government of the receiving Party on request of the ship’s master), under the following conditions:
(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; and
(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 metres.
The part of enforcement in the text of MARPOL is provided for in articles 4-6. Article 4 provides for
the enforcement powers of flag States. The flag State should prosecute a violation wherever it
4
occurred after being informed and if the evidence is sufficient. The same article provides that a
coastal State shall either prosecute offences occurred in its jurisdiction regardless the flag of the ship
or report the offences to the flag State for the purpose of initiating proceeding there. The coastal
State may also request a port State control inspection to a port State that the ship in question visits.
Articles 5 and 6 provide that a port State may inspect the ships that arrived to its ports or offshore
terminals for the purpose of verifying whether the ship has discharged any harmful substances, on
its own initiative, or if it has received a request, together with accompanying evidence, from another
State to perform such inspection. The inspection is performed according to the rules on Port State
Control. In some circumstances the ship can be detained. This will happen for example when a ship
does not carry a valid required certificate on board or if the data in the certificate does not
correspond to the data or conditions of the ship.
Image 1: Illegal discharge of a MARPOL annex II substance above the waterline
1.2.1.3 Annex III – Regulations for the Prevention of Pollution by Harmful Substances
Carried by Sea in Packaged Form
According to annex III, regulation 7, jettisoning of harmful substances carried in package form
(including empty packaging) is prohibited except where necessary for the purpose of securing the
safety of the ship or saving life at sea, or when appropriate measures have been taken to regulate
the washing of leakages overboard.
1.2.1.4 Annex IV – Regulations for the Prevention of Pollution by Sewage from Ships
Annex IV applies only to certain categories of ship. Regulation 11, article 1, provides that discharge of
sewage from ships other than passenger ships in all areas and discharge of sewage from passenger
ships outside special areas, is prohibited, except when:
(a) the ship is discharging comminuted and disinfected sewage at a distance of more than 4
nautical miles (nm) from land, or in the case of sewage which is not comminuted and
disinfected at a distance of more than 12 nm from land, and when the ship is en route and
proceeding at not less than 4 knots; or
(b) the ship has in operation an approved sewage treatment plant and the effluent shall not
produce visible floating solids nor cause discoloration of the surrounding water.
5
These provisions do not apply to ships operating in the waters under the jurisdiction of a State and
visiting ships from other States while they are in these waters and are discharging sewage in
accordance with such less stringent requirements as may be imposed by such State (article 2).
Regulation 11, article 3, states that from 1 January 2016 for new passenger ships and from 1 January
2018 for existing passenger ships, the discharge of sewage from a passenger ship within a special
area shall be prohibited except when the ship has in operation an approved sewage treatment plant
and the effluent shall not produce visible floating solids nor cause discoloration of the surrounding
water.
Article 4 provides that when the sewage is mixed with wastes or waste water, the more stringent
requirements shall apply.
Exceptions (regulation 3) are made when discharges are necessary for securing the safety of a ship
and those on board or saving lives at sea, or when the discharge results damage to the ship or its
equipment if all reasonable precautions have been taken.
1.2.1.5 Annex V – Regulations for the Prevention of Pollution by Garbage from Ships
Annex V applies to all ships and prohibits the discharge of garbage into the sea (regulation 2;
regulation 3). There are a number of exceptions, which are listed in regulations 4-7 of the annex.
1.2.1.6 Annex VI – Regulations for the Prevention of Air Pollution from Ships
Annex VI sets limits on sulphur oxide and nitrogen oxide emissions from ship exhausts and prohibits
deliberate emissions of ozone depleting substances; designated emission control areas set more
stringent standards for SOx, NOx and particulate matter.
1.2.2 UNCLOS: the United Nations Convention on the Law of the Sea
UNCLOS: the United Nations Convention on the Law of the Sea was adopted in 1982 and entered
into force in 1994. It regulates a variety of issues related to shipping but for the purpose of
counteracting ship source pollution only certain provisions will be highlighted in this chapter, namely
those provisions that relate to the enforcement issues with respect to pollution by illegal discharges
of oily and noxious substances to the sea.
1.2.2.1 Enforcement by flag States
Article 217 provides for the enforcement by flag States. When the ship commits a violation (e.g.
MARPOL violation involving illegal ship source pollution), the flag State shall open, on its own
initiative, an immediate investigation and, where appropriate, institute proceedings in respect of the
alleged violation, irrespective of where it occurred.
Moreover, any State can actually request the flag State to investigate the alleged violation. If there is
sufficient evidence, the flag State shall institute proceedings against the vessel without delay and
inform the IMO and the requesting State.
1.2.2.2 Enforcement by port States
Article 218 provides for the enforcement by port States. Articles 219 and 220 also include provisions
applicable by port States.
In relation to violations that occurred within the territorial sea or the exclusive economic zone of the
port State, article 220 provides that the State may institute proceedings in respect of the vessel that
6
committed the violation when this vessel is voluntarily within a port or at an off-shore terminal of
that State.
In relation to an illegal discharge from the vessel that occurred outside of the internal waters,
territorial sea or Exclusive Economic Zone (EEZ) of the port State, article 218 provides that the port
State may undertake investigations and, where the evidence warrants, institute proceedings in
respect of that vessel, if the vessel is voluntarily within a port or at an off-shore terminal of that port
State.
If the discharge occurred in the internal waters, territorial sea or EEZ of another State, the relevant
port State may only institute proceedings at the request of the coastal State where the violation
occurred or of a State damaged or threatened by the discharge, as well as the flag State, unless the
discharge is likely to cause pollution in its own waters or in the EEZ, then it is free to institute
proceedings on its own initiative.
The records of the investigation carried out by a port State at the request of the coastal, flag or
another State will be transmitted to them.
Any proceedings instituted by the port State may be suspended at the request of a coastal State (if
the violation occurred in the area of its jurisdiction) and then the evidence and records of the case
have to be transmitted to that coastal State.
According to article 219, when a vessel is in a port or in an off-shore terminal and is in violation of
applicable international rules and standards relating to seaworthiness and therefore threatens the
marine environment, the port State may prevent the ship from sailing. It will however permit the
vessel to proceed to the nearest appropriate repair yard.
1.2.2.3 Enforcement by coastal States
Article 220 provides for the enforcement by coastal States. Articles 111, 211 and 226 are also
relevant for the enforcement by coastal States.
Article 211 (and in particular paragraphs 4 and 5) creates a legal basis for the coastal States: it
provides that the coastal States may, in the exercise of their sovereignty within their territorial sea,
adopt laws and regulations for the prevention, reduction and control of marine pollution from
foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations
shall not (in accordance with part II, Section 3 of the Convention) hamper innocent passage of
foreign vessels. They may also adopt laws and regulations in respect of their exclusive economic
zones for the purpose of prevention of pollution from vessels if these laws give effect to generally
accepted international rules and standards established through the competent international
organisation or general diplomatic conference.
In relation to the discharges in the territorial sea of the coastal State, article 220 paragraph 2
provides that when there are clear grounds for believing that a vessel navigating in the territorial sea
of the coastal State has, during its passage therein, violated laws and regulations of that State or
applicable international rules and standards for the prevention, reduction and control of pollution
from vessels, a physical inspection may be undertaken and it may result in instituting judicial
proceeding or detaining the vessel if evidence warrants so.
7
However, according to article 226 the inspection of a foreign vessel shall be the least burdensome
possible, limited to an examination of required certificates, records or other documents. Further
physical inspection may only be undertaken if the vessel does not possess such documents, or the
content of documents is not sufficient to verify an eventual violation or there are clear grounds to
believe that the state of the vessel does not correspond to the documents.
In relation to the discharges in the EEZ of the coastal State, article 220 paragraph 3 provides that
where there are clear grounds for believing that a vessel navigating in the exclusive economic zone
or the territorial sea of a coastal State has committed in the exclusive economic zone a violation of
applicable international rules and standards or laws and regulations of that State giving effect to
those rules, that State may require the vessel to give information regarding its identity and port of
registry, its last and its next port of call and other relevant information required to establish whether
a violation has occurred. However, if the violation mentioned resulted in a substantial discharge
causing or threatening to cause significant pollution of the marine environment, that State may
undertake physical inspection of the vessel. If the violation resulted in a discharge causing major
damage or threat of major damage to the coastline or related interests of the coastal State, or to any
resources of its territorial sea or the EEZ, that State may detain the vessel and institute judicial
proceedings.
Last but not least, a coastal State is empowered, according to article 111, to pursue a foreign ship if
there is a good reason to believe that the ship has violated the laws and regulations of that State.
Such pursuit (‘hot pursuit’)must be commenced when the foreign ship or one of its boats is within
the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the
pursuing State, and may only be continued outside the territorial sea or even on the high seas if the
pursuit has not been interrupted. The right of hot pursuit ceases as soon as the ship pursued enters
the territorial sea of its own State or of a third State.
The right of hot pursuit shall apply accordingly to violations in the exclusive economic zone or on the
continental shelf, including safety zones around continental shelf installations, of the laws and
regulations of the coastal State applicable to the exclusive economic zone or the continental shelf,
including such safety zones.
1.2.2.4 Notification to the flag State and other States concerned
Both port and coastal States shall promptly notify the flag State or any other State concerned of any
measures against foreign vessels (article 231). The proceedings initiated by a port or coastal State in
respect of MARPOL violations committed by a foreign vessel outside the territorial sea of the State,
shall be suspended upon taking of proceedings by the flag State within six months of the date on
which the proceedings were first instituted – the suspension lasts until the flag State has arrived at a
final conclusion, then the suspended proceedings are also terminated. The flag State that requested
the suspension, shall in due course make available to the State that previously instituted the
proceedings access to the file and the records to the proceedings (article 228).
The proceedings will not be suspended if they relate to a case of ‘major damage’ to the coastal State
or if the flag State in question has repeatedly disregarded its obligations to effectively enforce
MARPOL (UNCLOS article 228).
8
1.3 Sea areas
International legislation contains a number of provisions related to sea areas; these often determine
whether an action is considered legal or not, and determine the rights and obligations, including law
enforcement obligations, of a state.
1.3.1 Maritime zones
Under international law, whether a violation of anti-pollution regulations has taken place in internal
waters, territorial seas or exclusive economic zones, determines the possibilities to take action
and/or to prosecute the violation, and may have a bearing on whether the case can be transferred to
another State for prosecution. It may also have a bearing on the penalties and/or costs awarded.
Figure 1: Maritime zones as defined by UNCLOS
Maritime zones are defined as extending from a baseline, usually the low-water line along the coast
(excepting inlets, etc.). Waters on the landward side of the baseline of the territorial sea form part of
the internal waters of the State; territorial waters may extend to up to 12 nautical miles (nm) of the
baseline; the exclusive economic zone (EEZ)3 may extend up to 200 nm of the baseline; beyond 200
nm or beyond the EEZ (if more limited), is termed ‘high seas’. It should be noted that establishing an
EEZ extends the jurisdiction of the coastal State beyond territorial waters.
1.3.2 Marine Protected Areas (MPA)
Marine Protected Areas (MPA), as the name suggests, are marine areas which have a protected
status. This usually relates to the recognition that a particular area has landscape or biodiversity
features which necessitate protection by law and the establishment of specific management tools.
3
Coastal States may limit their claim for jurisdiction to the protection and preservation of the marine environment,
for example, the establishment of the French Ecology Protection Zone (EPZ) in the Mediterranean Sea, which came into
effect on 10 January 2004.
9
Certain activities, such as fishing, mining or vessel activity, may be restricted or prohibited. However,
the definition of MPA can vary greatly, and encompasses a wide range of different institutional
organisations with distinctive objectives. Of particular relevance to ship-sourced marine pollution are
MARPOL-designated Special Areas, Particularly Sensitive Sea Areas (PSSA), and Mandatory Ship
Reporting Systems (MRS), though regulations in other types of MPA may also impose restrictions.
1.3.2.1 MARPOL Special Areas
According to MARPOL, a ‘special area’ is ‘a sea area where for technical reasons relating to its
oceanographical and ecological condition and to the particular character of its traffic the adoption of
special mandatory methods for the prevention of sea pollution [by the applicable polluting
substance] is required’. Each annex to MARPOL contains the definition of special areas applicable to
that annex. Consequently, special areas definition may differ depending on the polluting substance
in question. Under MARPOL annex II: Regulation for the Control of Pollution by Noxious Liquid
Substances, the regulations apply equally across all sea basins. In Europe, this removed the limited
geographical application of special areas to the Black Sea and Baltic Sea areas, by in effect extending
the more rigorous limits on annex II discharges to all sea areas. The map below shows the special
areas for annex I, IV and V which most concern EU Member States as port or coastal States.
Figure 2: MARPOL annex I: Special Areas
10
Figure 3: MARPOL annex IV: Special Areas
Figure 4: MARPOL annex V: Special Areas
11
1.3.2.2 Particularly Sensitive Sea Areas (PSSA)
According to IMO Guidelines, ‘a PSSA is an area that needs special protection through action by IMO
because of its significance for recognized ecological, socio-economic, or scientific attributes where
such attributes may be vulnerable to damage by international shipping activities’.4 The process for
designating PSSAs is found in the guidelines, and a list of current PSSAs may be found on the IMO
website. The map below shows the areas that have been designated as PSSA in Europe.
Figure 5: Particularly Sensitive Sea Areas in Europe
1.3.2.3 Mandatory Ship Reporting Systems (MRS)
Mandatory Reporting Systems (MRS) contribute to improve maritime safety; the main objective is to
ensure safe and efficient traffic flow through confined and/or congested waters. MRS are established
by States, with the endorsement of the IMO, in areas of particular environmental or navigational
concern. Vessels transiting through the designated area send MRS messages to nearby coastal
stations. In Europe, according to Directive 2002/59/EC as amended, the information received by
coastal stations participating in a MRS should be exchanged through SafeSeaNet (see chapter
10.1.2).
4
IMO Resolution A. 982 (24) Revised Guidelines for PSSAs.
12
1.4 EU law
1.4.1
Directive 2005/35/EC on ship-source pollution and on the introduction of
penalties, including criminal penalties, for pollution offences, as amended by
Directive 2009/123/EC
Directive 2005/35/EC was adopted on 7 September 2005. Its main objective is to incorporate into
European law the standards introduced by MARPOL related to the prohibition of polluting discharges
into the sea and to specify the sanctions to be imposed. Subsequently, it was amended by Directive
2009/123/EC which extended liability for discharges onto legal persons (thus making a wider variety
of subjects potentially liable for the pollution) and obliged Member States to treat illegal discharges
not only as infringements but also in some circumstances as criminal acts.
In relation to its geographical scope, the Directive applies to pollution wherever it occurs: ports,
internal waters, territorial sea, straits used for international navigation, exclusive economic zone,
other special zones and high seas. Article 3 of Directive 2005/35/EC delimitates the following
geographical scope of the Directive: ‘(a) the internal waters, including ports, of a Member State, in so
far as the MARPOL regime is applicable; (b) the territorial sea of a Member State; (c) straits used for
international navigation subject to the regime of transit passage (…); (d) the exclusive economic zone
or equivalent zone of a Member State, established in accordance with international law, and and (e)
the high seas.’
In relation to its substantive rules, the Directive applies to ‘discharges of polluting substances from
any ship, irrespective of its flag, with the exception of discharges coming from warships, naval
auxiliary or other ships owned or operated by a State and used, for the time being, only on
government non-commercial service’ (article 3.2). The Directive has therefore quite a wide scope –
any discharge of polluting substances into the sea, committed with intent, recklessly or by serious
negligence, from nearly any ship, is covered.
The Directive provides that ‘Member States shall ensure that ship-source discharges of polluting
substances into any of the areas referred to (…) are regarded as infringements if committed with
intent, recklessly or by serious negligence’ (article 4). This has been enhanced by Directive
2009/123/EC which brought a clarification that not only all discharges have to be treated as
infringements but actually in the majority of cases those infringements should be considered crimes.
Consequently, article 4 of the amended Directive provides that ‘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’ and article
5(a) that ‘Member States shall ensure that infringements within the meaning of articles 4 and 5 are
regarded as criminal offences.’
The Directive further provides that only the discharges that are minor and do not cause deterioration
of the quality of water are not considered crimes. They are still considered as infringements but they
can be of administrative nature. However, even minor cases sometimes can be treated as crimes:
‘minor cases that do not individually but in conjunction result in deterioration in the quality of water
shall be regarded as criminal offence if committed with intent, recklessly or with serious negligence.’
Member States are to take the necessary measures to ensure that offences mentioned should be
punishable by effective, proportionate and dissuasive criminal penalties (article 8).
13
The Directive refers to MARPOL and it explains that its objective is to provide for the criminalisation
of MARPOL violations relating to pollution discharges but it also acknowledges most of MARPOL
exceptions providing for situations when a discharge is not to be prosecuted. In particular, article 5
of the Directive provides that:
‘1. A discharge of polluting substances into any of the areas referred (…) shall not be regarded as an
infringement if it satisfies the conditions set out in annex I, Regulations 9, 10, 11(a) or 11(c) or in
annex II, Regulations 5, 6(a) or 6(c) of MARPOL 73/78.
2. A discharge of polluting substances into the areas referred to in article 3. 1 (c-e) shall not be
regarded as an infringement for the owner, the master or the crew when acting under the master's
responsibility if it satisfies the conditions set out in annex I, Regulation 11(b) or in annex II,
Regulation 6(b) of MARPOL 73/78.’
1.4.2
Directive 2000/59/EC on port reception facilities for ship-generated waste and
cargo residues
Directive 2000/59/EC has as its objective to reduce the discharges, especially illegal discharges, of
ship-generated waste and cargo residues into the sea, from ships using the ports in the EU Member
States. This can be achieved by improving the availability and use of port reception facilities for shipgenerated waste and cargo residues and at the same time by introducing incentives not to discharge
into the sea, as well as effective enforcement and penalties for non-compliance with the
requirements of the national laws implementing the Directive.
The Directive introduces into the EU law the MARPOL requirement to provide reception facilities for
ship-generated waste and cargo residues in ports, and complements MARPOL (which specifies which
wastes and under which conditions can be discharged into the sea) by introducing a requirement for
the ships to deliver their ship-generated waste while calling at a Community port. In particular,
article 7 of the Directive requires that the master of a ship calling at a Community port should deliver
all ship-generated waste to a port reception facility before leaving the port. The ship may however
proceed to the next port of call without delivering the waste if it has sufficient dedicated storage
capacity for all ship-generated waste until the next port. Nevertheless, if there are good reasons to
believe that adequate facilities for ship waste delivery are not available at the next port, or if this
port is unknown, and therefore there is a risk that the waste may be discharged at sea, the Member
State shall require the ship to deliver its waste before departure from its port anyway.
The Directive establishes also the advance notification requirement, criteria for exemptions and
inspection, as well as the principles of the Waste Reception and Handling plans and cost recovery
systems that the ports have to establish and follow.
According to article 6, the ships (other than fishing vessels or recreational craft authorised to carry
no more than 12 passengers) bound for a port located in the Community shall forward a truly and
accurately completed advance notification on a form specified in annex II of the Directive to the
authority or body designated by the Member State for that purpose. The notification has to be kept
on board at least until the next port of call and shall upon request be made available to the MS
authorities. Furthermore, according to article 12, the Member States have to ensure that the notified
information is appropriately examined.
14
Articles 11 requires the Member States to ensure that any ship should be subject to an inspection
(which may be in the framework of Port State Control) in order to verify if it complied with the
delivery requirements of the Directive. Ships that have not complied with the notification
requirement, or notified dubious information, have to be targeted. If the relevant authority is not
satisfied with the results of the inspection, it shall ensure that the ship does not leave the port until it
has delivered its generated waste and cargo residues to a port reception facility. Moreover, when
there is clear evidence that a ship has proceeded to sea without having complied with the
requirements to discharge, the competent authority of the next port of call shall be informed and
such ship shall not be permitted to leave that port until a more detailed assessment of the factors
relating to the ship's compliance with the Directive has taken place.
Member States shall lay down a system of effective, proportionate and dissuasive penalties for the
breach of national provisions adopted pursuant to the Directive.
1.4.3
Directive 2010/65/EU on reporting formalities for ships arriving in and/or
departing from ports of the Member States
The Directive concerns the transmission of data required upon arrival in and departure from ports
under, among others, Directive 2000/59/EC on port reception facilities for ship-generated waste and
cargo residues. In particular, it requires the master of the ship to submit a notification of waste and
residues. Member States must ensure that the national single window for reporting formalities is
fully operational by 1 June 2015.
1.4.4
Directive 2002/59/EC establishing a Community vessel traffic monitoring and
information system, as amended
The objective of the Directive is the setting up a Community vessel traffic monitoring and
information system which should help to prevent accidents and pollution at sea and to minimise
their impact on the marine and coastal environment.
In particular, article 17 of the Directive provides that ships sailing through search and rescue areas,
exclusive economic zones or equivalent of Member States will report to the local coastal station ‘any
incident or accident affecting the safety of the ship, any incident or accident which compromises
shipping safety, as well as any situation liable to lead to pollution of the waters or shore of a Member
State, such as the discharge or threat of discharge of polluting products into the sea or any slick of
polluting materials and containers or packages seen drifting at sea. The relevant report message shall
include at least the ship's identity, its position, the port of departure, the port of destination, the
address from which information may be obtained on the dangerous and polluting goods carried on
board, the number of persons aboard, details of the incident and any relevant information referred
to in IMO Resolution A.851(20).’
Moreover, article 19 provides that ‘in the event of incidents or accidents at sea as referred to in
article 17, Member States shall take all appropriate measures consistent with international law,
where necessary to ensure the safety of shipping and of persons and to protect the marine and
coastal environment’. Those measures may include, among others, restricting the movement of the
ship or directing it to follow a specific course.
15
1.4.5 Directive 2009/16/EC on Port State Control, as amended
The Directive concerns a Port State Control system of inspections to monitor the compliance of ships
with the international standards for safety, pollution prevention and on-board living and working
conditions for which the responsibility lies primarily with the flag State. It applies to any ship and its
crew calling at a port or anchorage of a Member State.
Article 19 provides that if any deficiencies are discovered, they have to be rectified. ‘In the case of
deficiencies which are clearly hazardous to safety, health or the environment, the competent
authority of the port State where the ship is being inspected shall ensure that the ship is detained or
that the operation in the course of which the deficiencies are revealed is stopped. The detention
order or stoppage of an operation shall not be lifted until the hazard is removed or until such
authority establishes that the ship can, subject to any necessary conditions, proceed to sea or the
operation be resumed without risk to the safety and health of passengers or crew, or risk to other
ships, or without there being an unreasonable threat of harm to the marine environment.’
1.5 Regional instruments
A number of international conventions, such as the Conventions establishing the Regional
Agreements, have set up special rules and procedures which are applicable at regional level and
contribute to the harmonisation of the enforcement of MARPOL regulations. There are both legal
and operational aspects associated with Regional Agreements, which are covered in more detail in
chapter 2.4).
1.6 National level
All European coastal States are parties to MARPOL, and all EU Member States are bound by the rules
of the Directive 2005/35/EC as amended. That means that, according to the Directive 2005/35/EC in
its initial version, they all had to have rules providing for sanctions of illegal discharges, be it
administrative or criminal. The study on the implementation of the Directive on ship source pollution
concluded by EMSA in September 2011 revealed that there was a preference for administrative
sanctions in the Member States. This has changed since the amendment of the Directive: now the EU
Member States have to provide for criminal – in most circumstances – sanctions of illegal discharges.
National laws regulate the procedure of collection of evidence, the evidence required, the courts
proper for such cases, as well as the amount of fines imposed or length of the eventual
imprisonment. National legislation varies considerably.
Non-EU Member States can have even more diverse legislation as they are not bound by the
requirements of the EU law. That means that even if all of them, as parties to MARPOL, should have
some system of penalising illegal discharges, in some countries those sanctions may only be
administrative. It is advised to consult the particular national law and procedure for more details.
If the investigation of a ship does not reveal enough evidence to prove that an illegal discharge has
taken place, the investigation could reveal other irregularities and relevant measures or sanctions
may be taken accordingly. All national laws contain other provisions for sanctioning, for example
non-delivery of garbage (if from the ship’s documentation it seems that the garbage was discharged
into the sea between the ports), as well as irregularities in ship’s log books and false statements
16
As noted in the INTERPOL Manual, ‘when considering the charges to be brought against those
illegally discharging oil from vessels, investigators and prosecutors should consider the full range of
national laws available, including false statements and records, conspiracy, failure to report,
concealing or obstructing an investigation, tax regulations or other applicable criminal statutes.’5
5
Interpol. 2007. Investigative manual for illegal oil discharges from vessels. p. 65.
17
Chapter 2: International cooperation
Given that enforcement responsibilities are shared between coastal, port and flag States, in most
cases successful enforcement will only be possible through international cooperation. The majority
of pollution incidents will require that various factors related to jurisdiction are taken into
consideration: a vessel may be travelling between the ports of two different States, the pollution
may affect a coastal State somewhere along the route, and the ship may be flying the flag of yet
another State. In addition, the parties responsible for the ship may be registered somewhere else
entirely, and the crew may well comprise individuals of various nationalities.
As presented above in the legal framework, MARPOL (article 6) requires that States cooperate in the
detection of violations and the enforcement of pollution prevention regulations. The decision to
initiate proceedings implies legal obligations regarding exchange of information and right of
jurisdiction. States should go beyond the minimum obligations embodied in legal instruments, and
follow the spirit of the conventions by identifying opportunities to cooperate across the entire
enforcement chain, from detection to feedback. Successful enforcement will only result from active
engagement of all parties involved within States and at international level.
The importance of cooperation is also noted in Directive 2009/123/EC, which states that ‘the
objectives of this Directive cannot be sufficiently achieved by the Member States acting alone, by
reason of the cross-border damage which may be caused by the behaviour concerned’. In the
absence of a global approach to tackle ship-source pollution, there is also a risk that successful
enforcement in some sea areas, with the resulting deterrent effect, will result in increased pollution
in others.
UNCLOS article 123 on the cooperation of States bordering enclosed or semi-enclosed seas is also of
particular relevance for cooperation between EU and non-EU States. Amongst other provisions, this
states that, ‘States bordering an enclosed or semi-enclosed sea should cooperate with each other in
the exercise of their rights and in the performance of their duties under this Convention. To this end
they shall endeavour, directly or through an appropriate regional organization:… (b) to coordinate
the implementation of their rights and duties with respect to the protection and preservation of the
marine environment.’
Although there is considerable bi-lateral cooperation between States, a number of cooperation
structures also exist in the field of enforcement of marine pollution legislation which can help
promote a collaborative and harmonised approach to enforcement. Each of these structures has
been established to perform a set of specialised tasks. These range from local to global, and each has
a different focus, ranging from development of legislation to operational actions. This variety means
that there are organisations with in-depth expertise and experience in almost every area of the
enforcement chain. However, this specialisation also means that it can sometimes be difficult to
coordinate across bodies, and to ensure that actors working in different geographical or thematic
areas understand and support each other’s activities. It is necessary that stakeholders working in the
area of marine pollution develop a clear overview of the roles, responsibilities, and relationships of
the various organisations, and an understanding of where each fits into the enforcement chain.
18
2.1 International Maritime Organization
The International Maritime Organization (IMO)6 is a specialized agency of the United Nations which
sets a regulatory framework to guide participating nations in the development of laws in the field of
maritime transport. The IMO’s mandate covers the safety and security of shipping and the
prevention of marine pollution by ships. Most of the IMO’s work is done through technical
committees. The Marine Environment Protection Committee (MEPC) was established in 1973, and is
responsible for coordinating activities in the prevention and control of pollution of the marine
environment from ships. In 1973, the IMO hosted a conference which resulted in the development of
the International Convention for the Prevention of Pollution from Ships (MARPOL).
The IMO facilitates the cooperation required under MARPOL in a number of ways: 1) through
meetings, particularly of the MEPC, in which signatory States debate issues related to pollution
legislation and State response; 2) through maintaining a database of the obligatory reports
submitted and 3) by technical assistance on a regional or country basis. The IMO also publishes
technical documents, such as the Manual on Oil Pollution, for example.
2.2 INTERPOL
The International Criminal Police Organisation INTERPOL (ICPO-INTERPOL) aims to ensure a
coordinated international police cooperation between the police forces of INTERPOL Member States.
It plays a vital role in supplying criminal information of a transboundary nature to the national police
forces. One of INTERPOL’s prime objectives is to ensure that INTERPOL Member States have a rapid,
reliable, secure and permanently available electronic computer-to-computer mail service. In addition
to the transmission of text messages, this mail system also enables law enforcement agencies to
instantly transmit images, photographs, etc.
INTERPOL’s permanent departments constitute the General Secretariat (in the Headquarters in Lyon,
France), whose close contacts with the INTERPOL National Contact Bureaux (NCBs) in the various
Member States provide the framework for day-to-day international police co-operation. The
Organisation – through the NCBs - provides logistic support in police co-operation and requests for
legal assistance (for example letters rogatory7 in urgent cases). The NCBs can rapidly transmit
requests for legal or police co-operation made by their own courts or police departments to the
NCBs of other countries. The contacted NCB will ensure that the police actions or investigations
requested by another country’s NCB are carried out on its territory. INTERPOL covers all types of
criminal activity with international ramifications.
Close cooperation in combating environmental crime is also encouraged via the INTERPOL network.
This means for instance that, with respect to a MARPOL offender, request for police or judicial
investigation of a suspect ship at the next port of call may be sent directly and rapidly from one law
enforcement agency to another through INTERPOL.
6
7
Previously called the Inter-Governmental Maritime Consultative Organization (IMCO)
A letter rogatory is used to request judicial assistance from a foreign court.
19
In 2002, INTERPOL launched the ‘Project Clean Seas’ to address illegal pollution from shipping
managed by the INTERPOL Environmental Crime Programme. The Clean Seas Project group has
developed a state-of-the-art ‘Investigative Manual for illegal oil discharges from vessels’8 and a
training course for law enforcement officers using the manual as a guide. The project also develops
networks for the sharing of intelligence on ship-sourced polluters and analysing effective
enforcement responses by flag States receiving referrals of violations.
2.3 Aquapol
AQUAPOL is a European network for cross-border cooperation in the area of law-enforcement in the
waterborne transport domain, and acts as a platform for learning and the exchange of good practice
for law-enforcement. It is a joint venture of fluvial, inland waterway, port and maritime police
agencies and institutions. Officially established in 2003, AQUAPOL now has a network of 21 member
organisations from across Europe. AQUAPOL aims at close cooperation with a number of strategic
partners.
Aquapol’s Maritime Working Group is active in the field of Marpol. The members make use of a
secure database, ‘Marpolweb’, which contains police investigation information for intelligence-led
policing activities regarding Marpol Annex I, II and V investigations.
2.4 Regional Agreements and conventions9
‘Regional Agreements’ refer to the agreements signed by countries around a particular sea area to
combat pollution of the marine environment.
Regional Agreements play a vital role in pollution response preparedness in Europe, including the
organisation of regular (mostly annual) expert meetings, scientific workshops, and practical pollution
response exercises. They also develop reporting formats, manuals and guidelines to aid pollution
response. In addition to pollution preparedness and response in relation to accidents involving largescale oil spill incidents, all the Regional Agreements also address issues related to reducing
operational discharges and preventing illegal discharges.
In addition to the Regional Agreements, there are also a number of bi-, tri-, and multi- lateral
agreements on a sub-regional level between neighbouring States. Due to the geographical situation
in Europe it is quite usual that some States have signed more than one such agreement.10
8
The manual has provided a very valuable source of information for this document.
Much of the information in this section is drawn from the websites of the relevant bodies, and is subject to
change. Please check the websites for more detailed information.
10
Existing bi- or multi-lateral pollution response agreements include: Quadripartite plan; Odessa Declaration;
Strategic Action Plan for the Rehabilitation and Protection of the Black Sea; Sofia Declaration; Trilateral
Agreement: Cyprus, Egypt, Israel; Copenhagen Agreement; DenGer Agreement; DenGerNeth Agreement;
SweDenGer Agreement; Bilateral Agreement: Finland, Estonia (Gulf of Finland); Bilateral Agreement: Finland,
Russia; Manche Plan; Bilateral Agreement: France, UK; Mediplan; Biscay Plan; Lion Plan; Bilateral Agreement:
Germany, Poland (Pomeranian Bight); Bilateral Agreement: Greece, Italy; Bilateral Agreement: Ireland, UK
(Irish Sea); Bilateral Agreement: Lithuania, Russian Federation; NorBrit; Bilateral Agreement: Norway, UK;
Bilateral Agreement: Norway, Russian Federation (Barents); Bilateral Agreement: Poland, Russian Federation;
Bilateral agreement: Denmark, Canada (Baffin Bay, Davis Strait); Adriatic and Ionian Initiative Multi-lateral
9
20
The various Regional Agreements work closely together and the European Commission is either a
Contracting party or has official observer status (Bucharest Convention) in all the Regional
Agreements, except the Copenhagen Agreement. Informal inter-secretariat (INTERSEC) meetings,
chaired by EMSA, are held on an annual basis with the participation of the Secretariats of the various
Regional Agreements and the European Commission. These meetings aim to foster the exchange of
information between the different parties regarding ongoing activities linked to marine pollution
preparedness and response, as well as to identify common activities to be undertaken in this field.
There are currently five active Regional Agreements, and a sixth which is not yet in force.
Figure 6: Regional Agreements
2.4.1
The Convention of 1974 and 1992 on the Protection of the Marine Environment of
the Baltic Sea Area (Helsinki Convention, ‘HELCOM’), www.helcom.fi
The Helsinki Convention was adopted in 1974 and entered into force in 1980. In light of political
changes a new convention was signed by all the countries bordering the Baltic Sea, as well as the
European Community, in 1992 and entered into force on 17 January 2000. The main goal of HELCOM
is to protect the marine environment of the Baltic Sea from all sources of pollution, not only shipsourced oil pollution. The Convention covers the whole of the Baltic Sea area, including the sea and
Agreement: Italy, Slovenia, Croatia, Serbia and Montenegro, Greece, Bosnia and Herzegovina and Albania
(Adriatic); RAMOGE: France, Monaco and Italy.
21
inland waters as well as the seabed. In addition to the Contracting Parties, there are some members
with observer status, including Belarus, Ukraine and the Bonn Agreement.
The governing body of the Convention is the Helsinki Commission – Baltic Marine Environment
Protection Commission (HELCOM) whose main goal is to protect the marine environment of the
Baltic Sea from all sources of pollution through intergovernmental cooperation between all
contracting parties. The working structure of HELCOM, supported by a secretariat, consists of the
annual meetings of the Helsinki Commission, the contracting parties’ heads of delegation meetings,
and the meetings of five technical working groups. Illegal discharges in the marine environment fall
under the scope of HELCOM RESPONSE and HELCOM MARITIME. The Helsinki Commission adopts
various recommendations as developed in these subsidiary bodies.
HELCOM also convenes an Informal Working Group on Aerial Surveillance (IWGAS). IWGAS is, under
the auspices of the Response Group (HELCOM RESPONSE), responsible for cooperation in the field of
joint aerial surveillance as well as for coordination of satellite based oil spill surveillance and
evaluation of its results and operational effectiveness. One Contracting Party is appointed as Lead
Country for an agreed period. The tasks to be undertaken are stated in terms of reference for the
Lead Country and for the Informal Working Group on Aerial Surveillance.
2.4.2
The Convention of 1976 for the Protection of the Mediterranean Sea against
Pollution (Barcelona Convention), www.unepmap.org
The Mediterranean Action Plan (MAP) was created under the United Nations Environment
Programme (UNEP) “umbrella” in 1975 leading to the adoption of the Barcelona Convention a year
later which entered into force in 1978. In 1995 MAP Phase II was adopted, entitled “Marine
Environment and the Sustainable Development of Coastal Areas of the Mediterranean” leading to a
substantial review of the Barcelona Convention and its protocol. The Barcelona Convention
attempts to address in a holistic manner all sources of pollution which may threaten the marine
environment of the Mediterranean and its coastal areas.
In particular, the Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases
of Emergency, Combating Pollution of the Mediterranean Sea is the legal framework within which
regional cooperation in the Mediterranean region in the fields of prevention of and response to
marine pollution from ships is developing. The Protocol was adopted on 25 January 2002 in Malta
and entered into force on 17 March 2004. Furthermore, in 2005 a Regional Strategy for the
Prevention of and Response to Marine Pollution from Ships, was adopted, setting specific objectives
to achieve the goals of the protocol. Amongst these objectives two are particularly relevant:


Improved follow-up of pollution events as well as monitoring and surveillance of illicit
discharges
Improve the level of enforcement and prosecution of discharges offenders
A dedicated Regional Activity Centre, the Regional Marine Pollution Emergency response Centre for
the Mediterranean Sea (REMPEC), has been established by the Contracting Parties to the Barcelona
Convention to assist the Mediterranean Coastal States in the field of prevention of, preparedness for
and response to marine pollution from ships. For more information, see: www.rempec.org.
22
2.4.3
The Agreement of 1983 for Co-operation in Dealing with Pollution of the North Sea
by Oil and other Harmful Substances (Bonn Agreement), www.bonnagreement.org
The first Bonn Agreement was established in 1969 following major oil spills including the TORREY
CANYON. The current Bonn Agreement dates from 1983 and, unlike HELCOM, is focused on
combating marine oil pollution by encouraging the North Sea States to jointly improve their basic
capacity. In addition to the Contracting Parties, Spain, HELCOM and REMPEC have observer status.
The working structure of the Agreement, supported by a secretariat, consists of the Contracting
Parties’ ‘Heads of Delegation’ meeting and a working group on Operational, Technical and Scientific
questions concerning counter Pollution Activities (OTSOPA) which was established to promote the
exchange of technical ideas. Both meetings occur once a year. The terms of the Bonn Agreement
include to:



Define procedures for notifying other Member States of an incident.
Promote sharing of information and resources in response to a spill.
Encourage sharing of surveillance resources as an aid to detecting and combating pollution
and to prevent violations of anti-pollution regulations.
The Bonn Agreement has produced a number of documents which contain valuable information for
the prevention, detection and prosecution of illegal discharges. These include for example, the
Counter Pollution Manual and the Bonn Agreement Aerial Operations Handbook where the Bonn
Agreement Oil Appearance Code (BA OAC) can be found.
The Agreement has an annual programme for ‘Tour d’Horizon’ activities as well as the Co-ordinated
Extended Pollution Control Operations (CEPCO) programme in which all Contracting Parties are
invited to participate.
2.4.4
The Agreement between Denmark, Finland, Iceland, Norway and Sweden about
Cooperation concerning Pollution Control of the Sea after Contamination by Oil or
other
Harmful
Substances
(Copenhagen
Agreement,
1971),
www.copenhagenagreement.org
Denmark, Finland, Iceland, Norway and Sweden are contracting parties to the Copenhagen
Agreement. The agreement was signed in 1971 and revised in 1993. Contracting parties have,
through the agreement, undertaken to cooperate in protecting the marine environment. Areas of
cooperation include monitoring, investigation, reporting, production of evidence, pollution control,
assistance and exchange of information. Information is exchanged and cooperation fostered through
plenary meetings, working groups, and bi- and trilateral exercises. The agreement also states that
the parties shall cooperate in preparation of plans and guidelines and by implementing exercise
activities.
2.4.5
The Cooperation Agreement signed in 1990 for the Protection of the Coasts and
Waters of the Northeast Atlantic against Pollution (Lisbon Agreement)
The Lisbon Agreement (1990) is aimed at promoting mutual assistance between France, Spain,
Portugal and Morocco. This international framework for cooperation in combating accidental marine
pollution follows the models of the Mediterranean Action Plan, the Bonn Agreement and the Helsinki
Commission. However, the Agreement has not yet entered into force. Despite this, some
cooperation as outlined in the Agreement has been carried out in response to recent incidents in the
region. The International Response Pollution Centre of the Northeast Atlantic (CILPAN) was created
23
in 1991 in order to fulfil the objectives of the Lisbon Agreement. The functioning of this centre is
assured by the Portuguese government. The actions of this centre are greatly limited by the nonratification of the Agreement. Prevention, monitoring, training and response to marine pollution by
oil or other substances are the main remits of the agreement. The agreement also provides for the
establishment of ‘zones of joint responsibility’. All contracting States are obliged to render assistance
to other parties, if required.
2.4.6
The Convention on the Protection of the Black Sea against Pollution (Bucharest
Convention), www.blacksea-commission.org
The Bucharest Convention was ratified by all six legislative assemblies of the Black Sea countries in
1994. Its Permanent Secretariat is based in Istanbul, Turkey. One of the main stated objectives of
the Convention is ‘To prevent, reduce and control the pollution of the marine environment from
vessels in accordance with the generally accepted rules and standards’ (article VIII).
The implementation of the Convention is managed by the Commission for the Protection of the Black
Sea against Pollution (the Black Sea Commission). The Black Sea Commission meets at least once a
year and at request of any one of the contracting parties at any time. Among its many tasks, the
Black Sea Commission (BSC) coordinates intergovernmental meetings on environmental issues
related to shipping. The BSC also implements the Black Sea Strategic Action Plan for the
Rehabilitation and Protection of the Black Sea (BS SAP) which was developed in 1996 and further
updated in 2009, to provide concrete actions to implement the Bucharest Convention. Advisory
Groups, including experts from all Black Sea States, have also been created to provide sources of
expertise, information and support to the BSC in implementing the BS SAP.
The Convention was signed by the Black Sea littoral states together with three specific Protocols:



the control of land-based sources of pollution;
dumping of waste; and
joint action in the case of accidents (such as oil spills).
In 2009, at Ministerial Meeting/Diplomatic Conference in Sofia (Bulgaria), the Contracting Parties to
Bucharest Convention signed the updated Protocol on land-based sources and activities.
Article 9 of the Protocol on dumping obliges Contracting Parties to cooperate in the exchange of
information ‘in case of suspicions that dumping in contravention of the provisions of this Protocol
has occurred or is about to occur.’
2.4.7 OSPAR
In the North East Atlantic, there were originally three Conventions which addressed polluting
substance in the marine environment: the 1969 Bonn Agreement (dealing with response to, and
prevention of, pollution from ships and maritime accidents), the 1972 Oslo Convention (dealing with
dumping from ships and aircraft) and the 1974 Paris Convention (dealing with land-based pollution,
including offshore installations). In 1992, the Oslo and Paris Conventions were updated and unified
to form the OSPAR Convention. Work on behalf of the Convention is undertaken by the OSPAR
Commission, composed of government representatives of the Contracting Parties and the European
Commission, representing the European Union. The OSPAR Commission and the Bonn Agreement
24
cooperate closely on many cross-cutting issues and the OSPAR Secretariat also fulfils the secretarial
function for the Bonn Agreement and the North Sea Network of Investigators and Prosecutors.
2.5 Investigators and prosecutors networks
Enforcing regulation against ship-source pollution in the marine environment is a complex process
which involves parties from different communities in different States. Legal systems and court
practices may vary significantly. Informal networks of investigators and prosecutors have been
established in order to improve the understanding and cooperation in the different stages of the
enforcement process. The main goals are to ease the flow of information between practitioners, to
exchange information on cases so as to establish best practices, and to understand each other’s
evidential and prosecutorial requirements. A particular added value of such networks is to exchange
information on available evidence for an on-going case prior to a formal request. Experience shows
that smaller networks without formal rules and processes allow greater flexibility and better
opportunities for the individuals involved to get to know one another.
The two existing networks, NSN and ENPRO (see below, 2.5.1 and 2.5.2), work in close collaboration
with Regional Agreements, and have also established links with each other. The development of
additional networks in regions where they still do not exist should be encouraged. As more networks
are established, it is recommended that they develop a forum to exchange information and ideas
with each other, in line with the model established for the INTERSEC meeting of Regional
Agreements.
2.5.1 North Sea Network of Investigators and Prosecutors (NSN)
The North Sea Network of Investigators and Prosecutors (NSN) is associated to the OSPAR
Commission, and cooperates closely with the Bonn Agreement, e.g. through the organisation of joint
workshops on judicial issues. The NSN promotes an informal exchange of information on
requirements in the different national legal systems for the main types of evidence in order to
improve the use of evidence in jurisdictions other than those where it has been collected. The NSN
meets annually and members maintain a close contact intersessionally. As well as organising events
and workshops, the NSN produces relevant documentation, including the North Sea Manual on
Maritime Oil Pollution Offences.
2.5.2
The Network of Prosecutors on Environmental Crime in the Baltic Sea Region
(ENPRO)
ENPRO is the Network of Prosecutors on Environmental Crime in the Baltic Sea Region. ENPRO works
under the auspices of the Network of the Prosecutors General in the Baltic Sea region i.e. the
Member States of the Council of the Baltic Sea States (CBSS): Denmark, Estonia, Finland, Germany,
Latvia, Lithuania, Norway, Poland, Russia and Sweden. The members of ENPRO are prosecutors
appointed by the Prosecutors General of the Member States of the CBSS. ENPRO convenes once a
year at a conference but the members of the Network work also between the conferences. The
chairmanship of the Network rotates every two years. ENPRO reports to the Prosecutors General on
an annual basis, and the Prosecutors General also confirm ENPRO's plan of action on basis of the
recommendations of ENPRO. ENPRO also cooperates closely with HELCOM.
ENPRO’s focus is to create direct contacts between the prosecutors of the Member States and form
the basis for practical cooperation, information exchange and discussion, e.g. by following and
analysing cases and common problems in the prosecution, educating its members, promoting
25
specialization on environmental crime and establishing contacts and cooperation with other
organizations working in the area. It also collects information on legislation and on prosecuting
environmental crime in Member States. ENPRO follows and analyses interesting cases on
environmental crime in order to exchange information and experience on problems and solutions for
the prosecution of environmental crimes. ENPRO works for the specialisation of public prosecutors in
the field of environmental crime, reasoning that this specialisation will promote the prosecution of
environmental crimes and specialised public prosecutors will be able to form a national knowledge
base in this field.
2.5.3 Mediterranean network of investigators and prosecutors
The Regional Strategy for the prevention of and response to marine pollution form Ships has
identified the setting up of a regional network on this specific issue as a means to strengthen the
cooperation between the Coastal States and assist in a better enforcement of MARPOL regulations.
However, despite several preliminary meetings, this regional network is not yet operational.
2.6 Memorandums of Understanding (MoU) on Port State Control
Inspection by port State control (PSC) Authorities of a foreign ship voluntary in port has the purpose
of ensuring that the condition of the ship and its equipment comply with the requirements of
international regulations (e.g. MARPOL), and that the ship is manned and operated in compliance
with these rules. If the ship is considered deficient in any way, the PSC Authorities will take
administrative action, which may include detention of the ship until the deficiency(ies) is (are)
rectified.
Given that ships will often visit ports of more than one State when voyaging in a given region, there
are considerable advantages in organising inspections on a regional basis. This reduces the burden
on individual States of conducting inspections and minimises delays to ships by ensuring that they
are not repeatedly inspected in short time frames, yet provides that all merchant ships are inspected
on a regular basis. It also helps to prevent regional ‘port shopping’, whereby a vessel may choose to
call more often at a port where inspections are less likely, either because the vessel is sub-standard
or because even for compliant vessels the inspections take time.
The establishment of a system of harmonized inspection procedures throughout a region is done
through a PSC agreement known as Memorandum of Understanding (MoU). There are currently nine
MoUs which, along with the United States Coast Guard PSC Programme, cover almost all seas areas
around the world11. The term MoU refers not only to the agreement which has been ratified by the
participating Maritime Authorities, but frequently also refers to the institutional framework of the
MoU. Each MoU has an executive body, known as a PSC Committee, which comprises
representatives of the participating Maritime Authorities and meets on a regular basis. Observers to
these meetings may include other MoUs, the International Maritime Organisation (IMO), and other
11
Europe and the north Atlantic (Paris MoU); Asia and the Pacific (Tokyo MoU); Latin America (Acuerdo de Viña del Mar);
Caribbean (Caribbean MoU); West and Central Africa (Abuja MoU); the Black Sea region (Black Sea MoU); the
Mediterranean (Mediterranean MoU); the Indian Ocean (Indian Ocean MoU); and the Riyadh MoU.
26
organisations as relevant, e.g. the International Labour Organisation (ILO) and the European
Commission. In between meetings, the activities of the MoUs are managed by the secretariats.
It is important to note that MoUs may have some legal obligations with regard to the collection of
evidence for the enforcement of MARPOL, but this is not their primary purpose.
2.6.1 The Paris MoU
The Paris Memorandum of Understanding on Port State Control (PSC), hereafter called PMoU, took
effect on 1 July 1982. There are currently (2013) 27 maritime authorities (‘the Authorities’)
participating in the PMoU: all 23 coastal Member States of the European Union, Canada, Iceland,
Norway, and the Russian Federation.
According to the PMoU, each Authority will maintain an effective system of PSC with a view to
ensuring that, without discrimination as to flag, foreign merchant ships calling at a port of its State,
or anchored off such a port, comply with the standards laid down in the relevant instruments; inter
alia MARPOL.
When an inspection is carried out and deficiencies are detected which are clearly hazardous to
safety, health or marine environment, the Maritime Authority will ensure that the hazard is removed
before the ship is allowed to proceed to sea and for this purpose will take appropriate action, which
may include detention. However, when exercising control under the Memorandum, the Authorities
will make all possible efforts to avoid unduly detaining or delaying a ship. It should also be noted that
the Authorities party to MARPOL (relevant instrument), will ensure that no more favourable
treatment is given to ships of non-Parties.
The New Inspection Regime (NIR) of the PMoU entered into force 1 January 201112. The NIR
introduced a number of new elements to overcome the main problems connected with the former
PSC regime and, in particular, the freedom in selecting ships for inspection by the Authorities. The
NIR contains improved mechanisms for targeting substandard ships which are now selected for
expanded inspection every 6 months, while quality ships are rewarded with longer inspection
intervals of up to 36 months. To facilitate the selection of ships for inspection and to report and store
inspection results, the NIR is supported by a new information system called Thetis.
The target mechanism of the NIR is based on the Ship Risk Profile (SRP) which allows ranking ships
into Low Risk Ships, Standard Risk Ships and High Risk Ships. A ship’s risk profile based on criteria
such as its type, age, flag, recognized organisation, inspection history and notably, managing
company (the International Safety Management manager). Consequently, the SRP determines the
periodicity of inspection.
An alleged violation of the provisions on discharge of harmful substances or effluents by a ship may
reduce the interval between inspections if introduced in Thetis by an Authority as an ‘overriding
12
The NIR was embedded into European legislation through the Directive 2009/16/EC as amended by Directive
2013/38, which applies to all Member States of the European Union, plus Norway and Iceland as part of the
European Free Trade Agreement. Russia, and Canada apply the NIR with minor differences compared with the
content of the abovementioned EU Directive.
27
factor’ that triggers an additional inspection. During this inspection, the Authorities will endeavour to
secure evidence relating to suspected violations of the requirements on operational matters of
MARPOL. Obviously, when during a ‘regular’ PSC inspection an alleged violation of the provisions on
discharge of harmful substances or effluents by a ship arises, or if a request is received from another
Authority, the Authority will proceed in the same way. 13
The PSC inspection report and supporting documentation in the case of an alleged violation on
discharge of harmful substances or effluents may be part of a judicial file. As the main purpose of the
PMoU is to prevent the operation of sub-standard ships, the inspection report is not always
adequate to deliver valid or sufficient evidence for criminal prosecution purposes; consequently,
sanctions do not necessarily follow.
In addition, PSC inspections may include a Concentrated Inspection Campaign (CIC) in relation to a
specific topic of a relevant instrument. A CIC is periodically held, normally once a year, for a period of
three months. The primary purpose of a CIC is to improve the safety of life at sea, prevent pollution
of the marine environment and improve maritime labour conditions. A CIC will propel the
achievement of the declared mission of the Paris MoU; the elimination of substandard shipping
through a harmonised system of PSC. In achieving this policy a CIC will assist in raising the awareness
of ship owners, operators and crew on the specific requirements the CIC will address. This will build
up the safety attitude and in extent will create a safer marine and labour environment.
The possibility of also using the network of MoU on Port State Control for the exchange of judicial
inquiries and information should be considered, although this would require an adequate legal basis
to be established. Together with additional arrangements within the MoU-framework on the
institution of proceedings as regards discharge violations, Port State enforcement in European
Waters could thus be strengthened considerably.
2.6.2 Black Sea MoU
Bulgaria and Romania, along with Georgia, the Russian Federation, Turkey and Ukraine are part of
the MoU on PSC in the Black Sea Region; the Black Sea MoU. The Memorandum entered into effect
in the Black Sea region for three Maritime States in December 2000, and for all six States in
December 2002. The Secretariat is based in Istanbul. The Russian Federation has developed and
launched the Black Sea Information System (BSIS), a PSC computerized information system for the
Black Sea MoU.
13
th
According to Section 6 of the PMoU (34 amendment), ‘the Authorities will upon the request of another
Authority, endeavour to secure evidence relating to suspected violations of the requirements on operational
matters of Rule 10 of COLREG 72 and MARPOL. In the case of suspected violations involving the discharge of
harmful substances, an Authority will, upon the request of another Authority, visit in port the ship suspected of
such a violation in order to obtain information and where appropriate to take a sample of any alleged
pollutant. Procedures for investigations into contravention of discharge provisions are listed in a PSC
Instruction.’ (Paris MoU. 2011. Instruction 44/2011/20: Procedure for Investigation under MARPOL
(Confidential)
28
2.6.3 Mediterranean MoU
The Mediterranean Memorandum of Understanding on Port State Control was signed in 1997. Its
current members are Algeria, Cyprus, Egypt, Israel, Jordan, Lebanon, Malta Morocco, Tunisia, and
Turkey. The secretariat is hosted by Egypt and the Information Centre is located in Morocco. The
Med MoU has recently strengthened its information system and has become the first PSC MoU to
directly exchange information with IMO, thus alleviating the burden of its Members to report under
MARPOL.
2.6.4 Cooperation between MoUs
Alerting and exchange of information is usually well organised between members of the same MoU.
For European Member States, this issue is addressed not only by the PMoU but more importantly in
the Directive 2009/16/EC. Communication between States belonging to different MoUs or nonsignatory States of MoUs is more complicated.
MoUs have secretariats which are independent of each other, and are in direct contact with
participating PSC authorities of the MoU. MoU secretariats, especially at the early stage of a
suspected violation, can help facilitate more immediate action by serving as intermediaries between
authorities belonging to different MoUs. These existing structures, which allow communication
between counterparts, should be used in particular when there is a need for an inspection in a port
outside of the Paris MoU region following an alleged MARPOL violation. These structures may also
facilitate feedback and reporting. However, any feedback provided with the intention that it may be
used in a criminal case should normally go directly to the requesting State in order not to frustrate
the usability of the collected evidence.
Cooperation agreements between MoUs exist on a case by case basis. Many MoU secretariats are
observer members in other MoUs. Occasionally MoUs also organise joint activities, such as combined
CICs. The effectiveness of the CICs should be enhanced when they are carried out simultaneously in
different parts of the world.
2.7 EMSA
The European Maritime Safety Agency is one of the EU's decentralised agencies, and was established
in 2002 by Regulation (EC) No 1406/2002. Based in Lisbon, the Agency provides technical assistance
and support to the European Commission and Member States in the development and
implementation of EU legislation on maritime safety, pollution by ships and maritime security. It has
also been given operational tasks in the field of oil pollution response, vessel monitoring and in long
range identification and tracking of vessels.
EMSA’s role in addressing issues related to unlawful discharges was reinforced in 2013, with the
revision to the Agency’s Founding Regulation. The mandate of the Agency in this area was confirmed
by Article 4(f), which states that one of the Agency’s core tasks is to ‘facilitate cooperation between
the Member States and the Commission… in improving the identification and pursuit of ships making
unlawful discharges in accordance with Directive 2005/35/EC on ship–source pollution and on the
introduction of penalties for infringements.’
Directive 2005/35/EC, as amended, tasks EMSA with working with Member States in relation to the
implementation of the Directive. This includes a range of activities, such as developing information
systems, establishing common practices and guidelines, developing technical solutions (e.g. satellite
29
monitoring), and assisting the Commission. On the basis of this Directive, EMSA developed
CleanSeaNet, the satellite-based oil spill monitoring and vessel detection system. EMSA also hosts
and manages other EU information systems which contribute to the objective of reducing pollution
in EU waters. For more information, see chapter 10.1.
In addition to the operational systems managed by the Agency, EMSA also provides support in terms
of training on a wide range of issues to representatives of the Member State authorities, as well as to
European Neighbourhood Policy countries. Training is given on maritime legislation, including
MARPOL, as well as regular training for Port State Control officers. Occasional ad-hoc trainings are
also given in relevant areas, such as aerial surveillance.
EMSA provides logistical support to a number of forums which foster cooperation in the areas of
pollution prevention and response. One of these forums is the Consultative Technical Group for
Marine Pollution Preparedness and Response (CTG MPPR) whose main objective is to provide a
platform for Member States to improve preparedness for and response to accidental and deliberate
pollution from ships. The forum enables participants to exchange information, views and opinions,
share best practice, and define current and future priority actions. The representatives also form
working groups which are active throughout the year to address areas of common concern, such as
dispersant testing across Europe or lessons learnt from major incident response.
EMSA regularly participates in and contributes to, as part of the European Commission delegation,
meetings of the IMO’s Oil Pollution Preparedness, Response, and Cooperation Hazardous and
Noxious Substances OPRC/HNS Technical Group, which is the main technical IMO forum on marine
pollution preparedness and response. With respect to Regional Agreements, EMSA provides
technical support to the European Commission during relevant meetings by submitting papers and
participating in discussions. EMSA also chairs the Regional Agreements’ INTERSEC meetings.
30
Chapter 3: Pollution in the marine environment
The purpose of this chapter is to briefly introduce vessel-source pollution discharges in the marine
environment.
UNCLOS defines pollution in article 1.1.(4) in the following way: "pollution of the marine
environment" means the introduction by man, directly or indirectly, of substances or energy into the
marine environment, including estuaries, which results or is likely to result in such deleterious effects
as harm to living resources and marine life, hazards to human health, hindrance to marine activities,
including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and
reduction of amenities.”
Pollution in the marine environment has been an issue of concern since the late nineteenth century.
In particular, the issue of oil pollution gained prominence with the advent of engine powered
shipping. The first major Convention to address the issue was the International Convention for the
Prevention of Pollution of the Sea by Oil (OILPOL), 1954. Following the Torrey Canyon disaster in
1967, in which 120,000 tonnes of oil was released into the marine environment, oil pollution became
a main issue on the agenda of the International Maritime Organization, leading to the adoption of
MARPOL 73/78. Increasing concern in the intervening period about other types of pollution, from
garbage to air emissions, is also reflected by MARPOL through the subsequent adoption of annexes
II-VI.
In this chapter, types of polluting substances are presented following the classification adopted in
the different annexes of the International Convention for the Prevention of Pollution From Ships,
1973 as modified by the Protocol of 1978 (MARPOL Convention). The chapter addresses primarily
pollution by oil and ‘hazardous and noxious substances’ (HNS), and briefly addresses some other
types of pollution14.
3.1 Pollution by oil15 – MARPOL annex I
Although large-scale pollution incidents receive more media attention, a greater volume of oil is
released into the marine environment through chronic oil pollution – the cumulative effects of
smaller but recurrent legal and illegal discharges of oil over long periods of time resulting from
’normal’ ship operations. Operational discharges are estimated to make up 45% (and shipping
accidents 36%) of vessel-sourced oil entering the environment16. The environmental and socioeconomic damage caused by oil pollution is determined by a range of factors, including: type of oil;
physical, biological and economic characteristics of the location; amount and rate of spillage; and
time of year.
14
Certain types of vessel-source marine pollution are not covered by MARPOL legislation (e.g. noise pollution,
ballast water), and these have not been presented.
15
As defined under MARPOL annex I, regulation 1.1, “Oil" means: “petroleum in any form including crude oil,
fuel oil, sludge, oil refuse and refined products…[and] includes the substances listed in appendix I to [annex I].”
16
GESAMP. 2007. Report n° 75: Estimates of Oil Entering the Marine Environment from Sea-Based Activities,
IMO/FAO/UNESCO-IOC/WMO/WHO/IAEA/UN/UNEP Joint Group of Experts on the Scientific Aspects of Marine
Environmental Protection. (http://gesamp.imo.org/).
31
In general, light refined products (e.g. gasoline, diesel) and light crude oils do not persist on the
surface of the sea for any considerable length of time due to rapid evaporation of the volatile
components, and they are more likely to disperse and dissipate naturally, especially in rough seas.
Such oils tend to be more toxic and can result in mortalities of marine plants and animals if sufficient
concentrations of oil enter the water column through wave action and are not rapidly diluted by
natural sea movements. In contrast, heavy crude oil and heavy fuel oils, whilst generally lower in
toxicity, are considerably more persistent in the marine environment due to the lesser volatile
compound content. Hence, they do not readily evaporate, disperse or dissipate naturally and rough
sea conditions are more likely to accelerate the emulsification process.
17
Figure 7: Fate of oil spilled at sea showing the main weathering processes (Source: ITOPF )
Oil which is incorporated in the sediment of coastal waters can be taken up by benthic (seabed)
organisms and enter the food chain, impacting population dynamics and health of shellfish and fish.
Refined oils in particular may taint edible fish, shellfish and other marine products, particularly in
areas where there is regular chronic oil pollution, for example in busy shipping lanes. Fish and
shellfish taste different if they have ingested hydrocarbons, and this can also affect their economic
value.
Oil on the sea surface, even in very small quantities, is dangerous to sea birds. Seabirds may be
immobilised by large amounts of oil: the water-repellent properties of their feathers are impaired
which can result in hypothermia, and even small amounts of oil in the plumage cause seabirds to
give up feeding18. Studies of seabird populations are one of the most common ways to assess levels
of oil in the marine environment. Weathered oil may also form tarballs19, which wash up on beaches
17
The International Tanker Owners Pollution Federation (ITOPF), www.itopf.com
Camphuysen C.J. 2007. Chronic oil pollution in Europe, a status report. Report Royal Netherlands Institute for
Sea Research, commissioned by International Fund for Animal Welfare (IFAW), Brussels.
19
When oil weathers, the lighter components evaporate. Heavier components remain, and mix with water to
form an emulsion. These emulsified patches of oil are broken up into smaller pieces, known as tarballs. Tarballs
18
32
and in sensitive coastal zones. Although the situation has improved, according to a study by
GESAMP, ‘the occurrence of coastal tar appeared to be substantial, both in quantity and global
distribution. This showed that considerable oil presumed to be largely from shipping or ship-based
activities were still entering coastal waters’20.
In addition to the impact on marine life, oil pollution can also have a detrimental effect on natural
resources in coastal zones, including protected areas. This in turn may impact economic and social
resources, such as tourism and leisure activities in the affected areas.
The impacts of oil pollution vary considerably, depending on the quantity and location of the
discharges, sea and weather conditions and the time of year, as well as the characteristics of the
resource impacted. The level of pollution in any given area is a complex equation between the traffic
density and actions taken by coastal States to prevent illegal discharges. In general, dense traffic
routes will have at least a low level of recurrent pollution based on legal levels of discharges. In areas
where discharges are recurrent, it is more difficult for natural resources to recover. Beached bird
surveys show that on beaches along busy shipping routes, a greater proportion of dead birds were
oiled.21
Coastal zones with shallow waters, especially where there are delicate ecosystems such as estuaries
and wetlands, can be easily damaged. As noted by OSPAR, ‘For each group of organisms there are
different danger periods, the spring season for breeding birds and fish larvae, summer for benthic
organisms and seals and winter for migratory or wintering birds.’22 Air and water temperature also
make a big difference: oil disperses much more quickly in warmer environments. This implies that in
areas such as the Arctic, discharged oil will persist in the environment for much longer periods of
time. To address some of these issues, a number of Particularly Sensitive Sea Areas (PSSA) have been
defined in waters under the jurisdiction of EU Member States.
The level of chronic oil pollution in waters under the jurisdiction of EU Member States is difficult to
measure. Evidence from beached bird and tar ball surveys indicate that levels of oil pollution have
dropped considerably over recent decades, although levels remain above what is legally permitted.
More recent evidence from aerial and satellite surveillance indicates that over the past five years
illegal discharges from vessels have been reducing in volume in across Europe. CleanSeaNet statistics
for example show an overall reduction in the number of possible spills detected from 10.77 possible
spills identified per million km2 monitored with satellite images in 2008, to 7.61 in 2009, 5.68 in
2010, 5.08 in 2011 and 4.53 in 2012. However, this trend is unevenly distributed, and the reduction is
more evident in some sea basins than others.
are usually a few centimetres in diameter, though they can be much larger. They are persistent in the marine
environment, and can be carried large distances.
20
GESAMP. 2007. Report n° 75: Estimates of Oil Entering the Marine Environment from Sea-Based Activities,
IMO/FAO/UNESCO-IOC/WMO/WHO/IAEA/UN/UNEP Joint Group of Experts on the Scientific Aspects of Marine
Environmental Protection. (http://gesamp.imo.org/), p. 1.
21
Camphuysen. 2007.
22
OSPAR Commission. 2010. North Sea Manual on Maritime Oil Pollution Offences, p. 6.
33
3.2 Pollution by noxious liquid substances in bulk23 – MARPOL annex II
In MARPOL annex II, ‘noxious liquid substance’ means any substance indicated in the Pollution
Category column of chapter 17 or 18 of the International Bulk Chemical Code or provisionally
assessed under the provisions of regulation 6.3 (MARPOL) as falling into Category X, Y, Z, or other. In
accordance with regulation 6.3, the IMO’s Marine Environment Protection Committee issues an
annual circular with the provisional categorization of liquid substances. The annexes to the circular
provide lists of noxious liquid substances with associated categories and minimum carriage
requirements which have been established through Tripartite Agreements and registered with the
IMO Secretariat.24
3.3 Harmful substances carried by sea in packaged form25 – MARPOL
annex III
Severe weather, rough seas, inadequately secured cargo, and accidents and incidents can result in
containers falling overboard. Harmful substances in packaged form should be transported in
accordance with regulations on packaging, marking, labelling, documentation, stowage and quantity
limitations. Marine pollutants, including those in packaged form, are defined under the International
Maritime Dangerous Goods Code (IMDG Code) and should be marked with a ‘marine pollutant’
symbol.
Figure 8: Marine pollutant symbol
23
As defined under MARPOL annex II, regulation 1.10, “Noxious Liquid Substance" means: “any substance
indicated in the Pollution Category column of chapter 17 or 18 of the International Bulk Chemical Code or
provisionally assessed under the provisions of regulation 6.3 as falling into Category X, Y or Z.”
24
For
updated
information,
visit
the
IMO
website:
http://www.imo.org/blast/mainframemenu.asp?topic_id=1785
25
As defined under MARPOL annex III, regulation 1.1, “harmful substances” means “those substances which
are identified as marine pollutants in the International Maritime Dangerous Goods Code (IMDG Code)* or
which meet the criteria in the appendix of the annex,” and “packaged form” is defined as “the forms of
containment specified for harmful substances in the IMDG Code.”
34
The effects on the marine environment of harmful substances in packaged form depend on what the
package contains, and the level of exposure to the environment. Many marine pollutants carried in
packaged form are hazardous and noxious substances, described in more detail above.
3.4 Properties of hazardous and noxious substances (HNS)
Noxious liquid substances (MARPOL annex II) and harmful substances carried by sea in packaged
form (MARPOL annex III) also fall under the definition of ‘hazardous and noxious substances’ (HNS).
HNS is defined by the IMO OPRC-HNS Protocol (2000) as ‘any substance other than oil which, if
introduced into the marine environment, is likely to create hazards to human health, to harm living
resources and marine life, to damage amenities or to interfere with other legitimate uses of the
Sea’26.27
HNS substances can be released into the sea in a number of ways: from containers falling overboard,
to chemical tankers cleaning their cargo tanks and discharging overboard, to operational chemical
substances (e.g. lubricants, cleaning agents, etc) which end up in bilge water tanks. Marine pollution
caused by HNS differs from oil pollution in having a wide range of potential fates and behaviours
once released into the marine environment.
It is the physical fate of the HNS once it is released into the environment which determines whether
the substances’ flammable, reactive, toxic, explosive, corrosive properties will have an impact. Some
materials behave in a similar way to oil spills (not least because a number are derived from
petroleum products), but others react differently, such as forming gases, evaporating into the
atmosphere, dissolving into sea water, igniting, etc.
HNS substances can be divided into four major categories:




Evaporators: Comprises all volatile liquids which are less dense than sea water;
Floaters: Comprises all non-volatile liquids which are less dense than sea water;
Sinkers: Comprises all products which are more dense than sea water, and;
Dissolvers: Comprises all products which are soluble in sea water.
26
For more complete information on HNS substances in the marine environment, see: EMSA, 2007, Action Plan
for HNS Pollution Preparedness and Response.
27
There are a number of IMO conventions and codes designed to ensure maritime safety and prevention of
pollution by HNS substances, including dangerous liquid substances carried in bulk (IBC code), liquefied gases
carried in bulk (IGC code), packaged hazardous materials covered by the International Maritime Dangerous
Goods (IMDG) Code, bulk materials associated with chemical hazards – such as fertilizers - covered by the
International Maritime Solid Bulk Cargoes (IMSBC) Code, amongst others.
35
28
Figure 9: Processes that can act on a chemical spill (Source: ITOPF )
Even low doses of HNS substances can produce sublethal effects to marine organisms, producing
impairments which may be detrimental to individual organisms, species, populations or marine
communities over the longer term. Although major effects are more likely following large-scale HNS
incidents involving considerable quantities of toxic substances, it is possible the effect of continual
small discharges in a limited area may also cause changes in the community structure. The
significance of such effects is dependent on the location; for example, changes in salinity and oxygen
content in an estuarine or already polluted area may have little impact due to the natural tolerance
of the resident marine community, whereas if regular spills start to occur in a previously pristine area
the effects are likely to be greater.
The characteristics of some metals and organic chemical compounds can result in incorporation into
biological pathways. Such material is known as a ‘conservative pollutant’; it cannot be broken down
by bacterial processes and is effectively a permanent addition to the marine environment. If a
substance is bioavailable (can be taken up by an organism) but cannot be readily excreted, it will
accumulate over the life span of the organism (bioaccumulation). Concentration across the food
chain is known as biomagnification. The lethal and sublethal effects of this process can be detected
in the top predators of marine communities, including humans.
There is limited information available regarding trade of HNS in waters under the jurisdiction of EU
Member States29, and it is therefore difficult to assess the scale of potential release of such
28
The International Tanker Owners Pollution Federation (ITOPF), www.itopf.com
The situation is likely to improve when the EU Member States ratify the International Convention on Liability
and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea,
1996 as revised by the Protocol of 2010 to the Convention (2010 HNS Convention). Information about HNS
importers and the quantity and type of HNS imported by sea will then be made available.
29
36
substances into the marine environment. The European Union’s chemical industry is one of the
world’s largest chemical producers, and regional seas around the EU have a relatively high share of
seaborne transportation of liquid substances in bulk (which probably include a substantial amount of
HNS).
On 20 January 2009, Regulation 1272/2008/EC on classification, labelling and packaging of
substances and mixtures entered into force. It aligns existing EU legislation to the United Nations
Globally Harmonised System of Classification and Labelling of Chemicals (GHS).
Figure 10: Flow chart of a joint European system for classification of chemical spills in water
30
HELCOM Manual on Cooperation in Response to Marine Pollution.
37
30
3.5 Sewage31 – MARPOL annex IV
Sewage (black water) waste, if discharged near land, can cause harm to ecosystems and pose a
public health threat. Sewage can contain harmful nutrients, bacteria, pathogens, diseases, viruses,
and parasites. Nutrients may change the balance of the ecosystem, resulting in excessive algal
growth and possibly eutrophication. Virus, pathogens and bacteria can contaminate fish and
shellfish, and are also a potential public health risk.
Passenger ships (cruise ships and ferries) make up approximately 8% of the world shipping fleet32.
Overall passenger figures in Europe are dropping33, but there is an increase in the number of cruise
passengers, from 3.1 million to 5.5 million between 2005 and 201034. Cruises pose a particular
problem due to the relatively large amount of sewage waste produced and because the majority of
cruise ships travel close to the coastline, where ecosystems are more sensitive. Approximately 50
tonnes of sewage per day are produced by an average cruise ship35, between 20 and 40 litres per
person per day. Cruises also discharge considerable quantities of grey water, comprising other waste
water such as from kitchens, laundries, showers, etc. This also contains organic matter, and can
result in algal growth and eutrophication.
3.6 Garbage from ships36 – MARPOL annex V
Garbage (also termed litter or debris37) poses a threat to the marine environment in a number of
ways. Garbage floating on the sea surface and washing up onshore in unsightly, and undermines the
aesthetic appearance of the area in question, with possible impacts on tourism and recreation. The
physical characteristics of discarded materials may have an impact on wildlife, for example through
ensnaring marine mammals, birds and fish, or through ingestion. It can also cause damage to ships,
http://www.helcom.fi/groups/response/en_GB/respmanual/
31
As defined under MARPOL annex IV, regulation 1.3, “Sewage" means: ‘(1) drainage and other wastes from
any form of toilets and urinals; (2) drainage from medical premises (dispensary, sick bay, etc.) via wash basins,
wash tubs and scuppers located in such premises; (3) drainage from spaces containing living animals; or (4)
other waste waters when mixed with the drainages defined above.’
32
EMSA.
2010.
The
world
merchant
fleet
in
2010.
Statistics
from
Equasis
(http://www.emsa.europa.eu/implementation-tasks/equasis-a-statistics/items/id/472.html?cid=95)
33
‘The total number of passengers passing through EU-27 ports in 2010 is estimated at 396 million (inwards
movements plus outwards movements), a drop of 2 % compared to the previous year’. (EUROSTAT,
http://epp.eurostat.ec.europa.eu/statistics_explained/index.php/Maritime_ports_freight_and_passenger_stat
istics )
34
Maritime Knowledge Centre. 2012. International Shipping Facts and Figures - Information Resources on
Trade, Safety, Security, Environment,
35
Butt, N. 2007. The impact of cruise ship generated waste on home ports and ports of call: A study of
Southampton, Marine Policy 31
36
For a full definition, see the revised MARPOL annex V (entered into force 01 January 2013). Garbage
includes, food waste, cargo residues, cleaning agents and additives, animal carcasses, and all other garbage
including plastics, synthetic ropes, fishing gear, plastic garbage bags, incinerator ashes, clinkers, cooking oil,
floating dunnage, lining and packing materials, paper, rags, glass, metal, bottles, crockery and similar refuse.
37
Marine debris and marine litter are other terms used to describe (usually man-made) materials which have
been discarded, disposed of or abandoned in the marine environment. The terms marine litter and marine
debris are also often considered to include items entering the sea from land-based sources (e.g. rivers, sewage
systems, etc.), as well as sea-based sources such as shipping and fishing. However, in many contexts these
terms are used interchangeably.
38
for example, tangling in the rudder. Floating garbage can also act as a raft, enabling the spread of
alien species across wide distances.
Plastic is recognised as particularly problematic as it persists in the marine environment; it does not
fully degrade, but only breaks down into increasingly small particles. This means that it is dangerous
to wildlife both because it can directly entangle, harm and suffocate, but also because it is easily
ingested across the food chain. Some additives to plastics are toxic, and plastics can also attract
other toxic compounds in the water, increasing toxicity. Approximately 6.5 million tonnes of plastic a
year are estimated to enter the oceans from vessels38.
The diagram below shows what types of garbage are likely to be discharged by different vessel types:
Figure 11: Sources of litter [Garbage from Ships]
39
3.7 Air pollution from ships40 – MARPOL annex VI
Air emissions from ships affect the environment through changes to the atmosphere, e.g. acid rain,
as well as decreasing overall air quality for populations living near shipping routes and in ports.
Detection and measurement of air pollution does not fall directly within the scope of this document,
although some aspects of inspection in port may have bearing on enforcement of air pollution
regulations.
38
Derraik J.G.B . 2002.The pollution of the marine environment by plastic debris: a review. Marine Pollution
Bulletin 44: 842-852.
39
MFSD GES. 2011. Marine Litter - Technical Recommendations for the Implementation of MSFD
Requirements. Marine Strategy Framework Directive Good Environmental Status (MSFD GES) Technical
Subgroup on Marine Litter.
Although the report and diagram refer to ‘litter’, this can be understood as garbage from ships in this context.
40
As defined under MARPOL annex VI, regulation 1.7, “emission” means “any release of substances, subject to
control by this Annex, from ships into the atmosphere or sea”.
39
Chapter 4: Production of oily waste by vessels
This chapter covers: i) how oily waste is generated; ii) how oily waste is disposed of41, and iii) the
reasons why illegals discharges occur. Information provided comprises a very basic overview for
investigators and prosecutors from outside the maritime field who may not be familiar with how and
why oily waste is produced and discharged.
4.1 How oily waste is generated
The volume of oily waste generated and/or stored on board a vessel depends on various factors.
These include, for example:
•
Type, age and size of vessel
•
Type and age of equipment related to oil separation and storage
•
Maintenance of vessel and equipment
•
External factors such as availability of Port Reception Facilities
Three categories of oily waste generally accumulate on board large vessels. These are:
•
Oily bilge water, defined in MARPOL annex I as water which may be contaminated by oil
resulting from things such as leakage or maintenance work in machinery spaces. Any liquid entering
the bilge system including bilge wells, bilge piping, tank top or bilge holding tanks is considered oily
bilge water. In addition to oil, bilge water often contains quantities of detergents and solvents.
•
Oil residue (sludge), defined in MARPOL annex I as the residual waste oil products generated
during the normal operation of a ship such as those resulting from the purification of fuel or
lubricating oil for main or auxiliary machinery, separated waste oil from oil filtering equipment,
waste oil collected in drip trays, and waste hydraulic and lubricating oils.
•
Oil cargo (refined product or crude oil) residues on tankers.
The components of bilge water and quantities produced vary considerably from vessel to vessel, but
the waste generated is usually a thinner and lighter than sludge waste. It is also comprised of more
varied elements. Quantities of sludge waste by comparison, are more consistent in composition and
quantity, at about 1-2% of the volume of fuel oil consumed on board. Sludge is much thicker and
heavier than bilge water, and more persistent. The properties of oil cargo residues will depend on
the type of cargo carried.
4.1.1 Oily bilge water
Machinery spaces on large commercial vessels contain a wide array of engineering systems, including
those used to manage fuel, lubrication, fuel and lubricating oil purification, saltwater service, bilge
41
Some sections of 5.1 and 5.2 of the text on the generation and disposal of oily waste have been reproduced
and adapted with permission from INTERPOL, from the 2007 Investigative manual for illegal oil discharges from
vessels.
40
and ballast, firefighting and sewage. Each system contains numerous pumps, fittings, control devices
and other components, along with extensive lengths of piping. All components are engineered to
prevent and minimize leakages through the use of mechanical seals, gaskets, etc. Despite this,
because machinery spaces are so huge, waste accumulation of 20 cubic metres per day or more may
occur. Bilge collects in bilge wells, and from there is pumped to bilge water holding tanks, where
fitted.
4.1.2 Oil residue (sludge)
Deep-draught vessels generally burn low quality heavy fuel oil in their engines. This fuel contains
contaminates. To prevent damage to engine components, retard wear, and improve combustion, the
fuel is purified by centrifuges before entering the engines. At preset intervals, a shoot cycle occurs,
which ejects contaminates (sludge), which drain to a sludge tank.
Compared with bilge water, fuel oil sludge is generally less varied and the quantities are more
predictable, provided the quality of the fuel oil remains constant. Sludge waste is much heavier than
bilge water. As a general rule of thumb, approximately 1-2% of the heavy fuel oil burned in a vessel’s
main engine and generators ends up as sludge. The quantity could vary depending on the fuel’s
quality, its compatibility with previous shipboard fuels and the condition of the equipment used to
store, transfer and heat it.
Main and auxiliary engine lubricating oil is similarly processed. The equipment may be self-cleaning,
and the resultant sludge and waste fluids enter a sludge tank. The waste quantities produced in this
process are normally less than the quantities resulting from fuel oil. Depending on the engine type,
the area between the pistons and cylinders may also be lubricated by a separate system. The waste
gravitates to a separate sludge oil tank known as a stuffing box or lantern ring drain tank.
4.1.3 Product (refined oil) cargo residue waste
Tanker vessels have numerous tanks and may carry many different cargos at the same time, varying
from different types of petroleum products to chemicals and food products. As a result, these cargo
tanks must usually be cleaned between carrying different cargos. Tanks carrying refined petroleum
products can be cleaned by pumping water through the cargo tank washing system, by steam
cleaning or spraying pressurized hot water.
A quantity of sea water, up to several hundred tonnes, will be taken on board into a slop tank. This
water is recycled from the slop tank through the cargo tank washing system. On completion of tank
washing, and stripping of the washed tanks and pipelines, the slop tank will contain the saltwater
used for washing, the cargo residues, and unpumpable quantities from each tank. These quantities
will be measured, the interface recorded and cubic metres calculated.
The vessel may choose to discharge a quantity of the slops (water) through its Oil Discharge
Monitoring and Control system into the sea after the slops/cargo residues have settled out and the
interface-measured quantities have been calculated, in accordance with MARPOL requirements.
4.1.4 Crude oil cargo residue waste
On completion of crude oil discharge operation from a tanker, there will be unpumpable quantities
of cargo residue in each tank. Unpumpable quantities in crude tankers will vary more than for
product tankers, due to the size of the cargo tanks and nature of the cargo.
41
In the past, the process was essentially the same as for refined product cargo, but in recent years
specific crude oil washing (COW) processes have been introduced, which use the crude oil cargo of
the oil tanker to clean the residue from the tanks. The crude oil is heated then sprayed using high
pressure nozzles onto the walls of the cargo tank. This reduces considerably the amount remaining
on board, resulting in savings due to the increased quantity discharged, whilst also reducing the
eventual volume of waste. MARPOL made COW systems mandatory for oil tankers of 20,000 tonnes
or more.
4.1.5 Oily waste tanks
The names and arrangement of oily waste tanks on vessels will differ according to the type and size
of vessel. All vessels over 400 gt are required to have tanks for collecting oily residues (sludge) and
they should be of a size that is adequate to the operation of the vessel. Bilge water holding tanks are
not mandatory but are fitted to most vessels. Vessels over 400 gt are also required to be fitted with
oil filtering equipment that may include any combination of a separator, filter or coalescer, and also
a single unit designed to produce an effluent with oil content not exceeding 15 ppm.
Figure 12: A possible example of oily waste production and tank arrangements
The International Oil Pollution Prevention (IOPP) certificate and appendix will contain information
about the tanks and equipment on board that particular vessel for the handling of oily waste. The
vessel will also have piping and tank diagrams for the various systems. The IOPP certificate, piping
diagrams and Oil Record Book should contain a tank plan. The ship’s Oil Record Book contains
instructions on the information which must be recorded relating to oil transfers as well as the
mandatory log of oil, sludge and bilge water transfers.
42
4.1.6 Normal disposal of waste
There are very few options for legal disposal of sludge and bilge water waste. Sludge and bilge water
waste are pumped to, and then contained in, various holding tanks. The oily water that is collected
in the bilge wells and transferred into holding tanks can be transferred ashore via a fixed transfer
system, provided there is enough storage capacity on board. However, there is often a large amount
of water in the waste, and disposal ashore is often not considered cost efficient by the vessel. If not
transferred ashore, the bilge water waste should be processed by the oil filtering equipment. Sludge
should be either stored on the vessel for eventual disposal ashore, or burnt in the incinerator in
areas where this is permitted.
Oil filtering equipment consists of any combination of separator, coalescer or other equipment that
separates oil and water, and is commonly referred to as an Oily Water Separator (OWS). This
equipment is required to be designed and tested to separate oily water mixtures to a maximum limit
of 15 parts oil to one million parts water (15 ppm). The equipment may be fitted with an Oil Content
Meter (OCM) and automatic stopping device which prevents the discharge of any effluent above the
15 ppm limit, but this is only required on vessels over 10,000 gt. Such equipment must be approved
to international standards under MARPOL. The approval standards are specified in IMO Resolutions.
The piping system connecting the various bilge wells to the bilge pump may be cross-connected to
other systems. Such cross-connections may be considered as internal bypasses and connected to
larger pumps, sometimes known as the ‘bilge and ballast pump’, or ‘general service pump’. These
cross-connections can facilitate the rapid pumping of the bilge overboard and are required by the
International Convention for the Safety of Life at Sea (SOLAS), but are intended for emergency use
only.
The Oil Record Book (Part I for all ship types and Part II for oil tankers) must contain all records of
loading, unloading of oil cargo, internal transfers, ballasting of cargo tanks, discharge of water from
slop tanks and disposal of oil residues. Each of the machinery space operations, including the
overboard discharge of bilge water waste, is required to be ‘fully recorded without delay’ in the Oil
Record Book.
Vessels are also required to keep record of waste disposal through the Garbage Record Book and the
Cargo Record Book for chemical tankers.
4.2 Illegal disposal of ship-generated and cargo wastes
Illegally disposing of ship-sourced polluting substances normally involves the discharge of polluting
substances overboard at levels over the limit prescribed by MARPOL, or other applicable limits (more
stringent limits are often applied, e.g. in Particularly Sensitive Sea Areas). The limits vary depending
on the type of substance, type of vessel, and the location (distance from the coastal, sensitive areas,
etc.).
Discharge violations imply the falsification or omission of records in ship records (e.g. Oil Record
Book, Cargo Record Book, Garbage Record Book).
In relation to oil products, there are two main ways to illegally dispose of waste: 1) through
bypassing the Oily Water Separator entirely, and piping waste directly overboard using a bypass pipe
(often referred to as a ‘magic pipe’); and, 2) by tampering with the OWS so that it does not register
43
when waste with more than 15ppm of oil is being discharged (for example, by flushing with
seawater). Both these scenarios also require that crew falsify the Oil Record book.
In some legal systems, discharging polluting substances in violation of MARPOL is an absolute and
strict liability offence.42 In others, and as embodied in Directive 2005/35/EC, the discharge is
considered to be an infringement if the act was intentional, reckless or due to serious negligence.
4.3 Reasons illegal discharges occur
Whether an illegal discharge is due to negligence (such as poor maintenance of equipment) or is
deliberate (even actively promoted by the company), it is usually the result of action/inaction both
on the part of ship operators, and of ship master and crew. On some occasions, violations of
pollution regulations may result from lack of awareness by operators and crew. Deliberate illegal
discharges occur due to a conjunction of two factors: 1) there are economic advantages for ship
operators; 2) there is a low risk of being caught and penalised. Motivations for the individual crew
members are slightly different; these are less likely to include cost savings, but may be based on an
intention to follow perceived instructions (often implied rather than explicit) and/or fear of losing a
job.
There is considerable evidence, both anecdotal and from sources such as governmental, IMO and
PSC MoU reports that illegal pollution is a widespread problem. With respect to oily waste, for
example, for which there is more information available than other substances, the OECD report
states that ‘evidence from port State inspections reveal that nearly half of vessels inspected violate
at least one aspect of the international environmental rules concerning the stowage and disposal of
oil’43. While many transgressions are relatively minor, it is indicative that non-compliance with
environmental law is common in the sector.
4.3.1 Incentives to pollute
For the ship operator, discharging illegally is advantageous for a number of reasons, but the main
motivation is undoubtedly the potential cost savings that can be realised; vessels intentionally
pollute in the expectation that this will bring economic benefits and give them advantages over more
compliant competitors.
One estimate puts environmental compliance costs at approximately 3.5 to 6.5% of the daily
operating costs of a vessel.44 When this is extended over a fleet of vessels, the savings can be
substantial. Penalties of 18 million USD were paid by both the Royal Caribbean and Carnival Cruise
Lines for cases of fleet-wide MARPOL violations, ‘which represented 0.7% and 0.4% of operating
revenues respectively for those companies in the year the fines were imposed’. 45
42
In absolute and strict liability offences, there is no need to prove ‘mens rea’ or intention; evidence that the
offence has been committed is sufficient.
43
OECD. 2003. Cost savings stemming from non-compliance with international environmental regulations in
the maritime sector. Maritime Transport Committee. Organisation for Economic Co-operation and
Development, p. 4.
44
Ibid.
45
Ibid., footnote, p. 49.
44
For oily wastes, as for other types of ship-generated waste, cost savings from non-compliance can be
accrued from two main areas.
4.3.1.1 Maintenance and training costs
Ship maintenance and repair is costly. Some operators might neglect to properly maintain
equipment such as pipes, pumps, and OWS, making the pollution prevention system ineffective.
Training crew in proper use of anti-pollution equipment also involves costs.
4.3.1.2 Waste disposal costs
There are two possible costs associated with disposing of waste: 1) the direct cost of using port
reception facilities, and 2) a potential indirect cost if the ship has to stay for a length of time in port
to use Port Reception Facilities.
Calculating the costs of disposing of waste in Port Reception Facilities is complicated given the vast
range of vessel types, sizes, and ages, the length of voyage, and the wide variety of charges in
different ports. In addition, the costs per gross tonne of waste delivered, and costs per type of
waste, may vary considerably.
In the European Union, fees for waste are regulated by Directive 2000/59/EC on port reception
facilities for ship-generated waste and cargo residues. However, the Directive leaves considerable
scope for variation in the transposition to national law. Ports should implement cost recovery
systems which promote the use of port reception facilities whilst ensuring that ships contribute
significantly towards the costs (at least 30%). There is often an indirect fee for ship generated waste
included in the port fee, although this very rarely covers the full costs. There are a wide variety of
systems in place: the indirect fee might only cover a contribution to operation of reception facilities,
with a direct fee payment for all waste delivered; it might cover waste delivered up to certain limits,
with additional payments for waste in excess of the threshold; there may be a high deposit, with the
option to reclaim part of it if port reception facilities are not used, etc.46 For incompliant vessels,
there is still a considerable financial incentive not to deliver ship-generated waste in port.47
An additional determinant element in the economic decision not to use port reception facilities is the
additional time that a ship may have to stay in port to comply with waste disposal regulations.
Interruption of commercial activities is costly for the ship operators. A vessel may have to wait a
period of time before it is possible to discharge waste, depending on the availability of Port
Reception Facilities, and the queuing system in place. In some ports, discharging at a port reception
facility might also require a shift in berth, generating even more costs (use of tugs, linesmen, pilot,
etc.). Shortage of staff available to undertake the task following proper procedures could also be an
issue; the period in port is usually very busy, and there may not be staff available to undertake waste
disposal operations unless the vessel stays longer in port for specifically this purpose.
46
Ramboll. 2012. Study on the Delivery of Ship-generated Waste and Cargo Residues to Port Reception
Facilities in EU Ports, Report submitted to the European Maritime Safety Agency
47
The regulation applies to ship-generated household waste, sanitary waste, and ship-generated engine waste.
These categories are analogous those in annex V, annex IV and annex I of MARPOL.
45
Finally, the wide range of different systems in place requires that the ship operator, master and/or
crew are proactive in selecting appropriate port reception facilities. As a minimum, they need to
determine what types of waste can be offloaded, what volume of waste will be accepted, and what
arrangements need to be made (which, if different types of waste are involved, may also require
different procedures). This administrative and logistical burden can also be a deterrent to effective
waste disposal, making illegal disposal seem not only a cheaper, but also an ‘easier’ option.
In the Guide to Good Practice for Port Reception Facility Providers and Users (IMO. 2013.
MEPC.1/Circ. 671/Rev.1), it is stated that shipping contracts (charter party agreements) between
ship operators and cargo owners should take into account any logistical and commercial
considerations (time in port, disposal costs) related to discharging MARPOL wastes ashore. It is noted
that ‘such considerations are especially important when cargo tank pre-washes are required for
certain annex II residues, and when charter agreements specify tank or cargo hold cleaning.’
However, many charter agreements do not include these considerations, putting increased pressure
on masters and operators to perform activities in short timeframes and with reduced costs.
4.3.2 Consequences of violation
In order to address the problem of illegal discharges, existing legislation should be enforced in a
harmonised manner. Those responsible for discharging, whether at the level of operator or crew, will
only risk acting illegally if the consequences are perceived as being low or non-existent. At company
level, the main factors which are likely to be taken into account are the possibility of being caught
and sanctioned, the type and level of penalty, and the resulting negative publicity. The reputation of
the company is an important factor. At an individual level, many of these factors are also relevant for
the crew members involved.
4.3.2.1 Likelihood of being caught
When discharging at sea, the risk of being caught is often lower further from the coast, than in
coastal areas where surveillance by a variety of methods is usually more intensive. However
monitoring efforts are not always sufficient in all areas to deter polluters.
Information from vessel tracking and waste reporting systems is also not sufficient to enable law
enforcement authorities to determine whether waste is being disposed of legally. The range of
systems in place in different ports makes checking Port Waste Facility receipts (where they exist)
against Record Books extremely difficult.
Port State Control Inspectors have limited time to carry out inspections which cover a wide range of
aspects. Verifications related to pollution prevention are often limited to a formal examination of
the ship’s records.
The development of satellite monitoring systems like CleanSeaNet has increased the likelihood that
illegal discharges from vessels are detected. However, successful enforcement actions will always
require timely follow-up action on-site and/or in port.
4.3.2.2 Type of penalty/Level of fine
Each case should be considered on its own merits in terms of what penalty should be meted by the
court. Given the variety of legal systems in place, the defendant may be a natural person or may be a
legal person (company), or both, and the penalty will reflect that. Penalties may include monetary
46
fines, imprisonment, or other sanctions such as banning crew members from working in a particular
State’s waters.
Financial penalties are frequently not set high enough to dissuade vessels from polluting. The aim of
Directive 2009/123/EC was to strengthen the criminal law framework provided under Directive
2005/35/EC on ship source pollution and on the introduction of penalties for infringements. It
widens the scope of that Directive by obliging Member States to introduce ‘effective, proportionate
and dissuasive sanctions’ for specific criminal offences related to ship-source pollution. In addition to
the penalty itself, States should consider the possibility of recovering costs, including investigative
and legal costs.
A study on the transposition of the Directive into national law in the Member States found that
minimum fines for legal persons often ranging from about 15,000 EUR (and considerably less for
physical persons).48 The analysis and evaluation of deficiency reports and mandatory reports under
MARPOL for 2011 showed that globally the average fine imposed by port States for illegal discharge
violations was just 5,220 EUR [£4,491] (min. 93 EUR [£80]; max. 678,940 EUR [£583,578]), and by flag
States was even lower at an average of 2,680 EUR [£2,297] (min. 46.50 EUR [£40]; max. 21,090 EUR
[£18,127]).49 As the absolute number of reported fines is low (171 by port States and 211 by flag
States respectively), it is also likely that the few very high fines imposed distort the average.
Protection and Indemnity (P&I) Clubs are mutual insurance associations, covering liabilities of over
90% the world’s oceangoing tonnage, including liabilities arising from pollution. P&I Clubs may cover
fines arising from accidental pollution, but will not cover costs arising from deliberate or operational
discharges. Even in cases when the P&I Club may pay a bond for a vessel while a case is being
decided, it will require reimbursement if the vessel’s action is found to have been in violation of antipollution regulations.
48
EMSA. 2011. Implementation of the Ship Source Pollution Directive in the Member States (Internal study)
IMO. 2011. Analysis and evaluation of deficiency reports and mandatory reports under MARPOL for 2011 (FSI
21/4). In the MARPOL report figures are given in GBP. These figures have been converted at the annual average
exchange rate for 2011, of 1 GBP=1.163399 EUR.
49
47
Part 2 – The Enforcement Chain
This part provides guidance on the operational steps that need to be taken in order to move from
the initial detection of pollution to the successful prosecution of a violator. The enforcement process
involves a number of parties, from operational authorities in charge of monitoring the marine
environment, to vessel inspection authorities, and administrative and judicial enforcement
authorities. Each of these parties should familiarise themselves with the activities which are
undertaken across the entire chain, in order to know what can be expected from those earlier in the
chain, and how best to support those later in the chain.
Chapter 5: The illegal discharge enforcement chain
5.1 Overview
There are a number of steps between the point at which a vessel discharges a polluting substance at
sea and the application of adequate penalties if the discharge is found to be illegal.
5.1.1 Step 1: Initial indication of a possible violation
There are three main sources of information

Detection at sea
Monitoring of the marine environment can result in identification of possible illegal spills. There are
numerous means by which possible pollution at sea may be detected, including aerial surveillance by
satellite or aircraft, reports of pollution sightings from other vessels in the vicinity, and observations
from shore.

Inspection in port
Vessels are regularly inspected to ensure that they meet international safety, security and
environmental standards, and that crew members have adequate living and working conditions.
These inspections may be undertaken by various authorities such as Port State Control, maritime
police, MARPOL inspectors, etc. Results of such routine inspections may raise suspicion of possible
violations.

Information received
Information may come from crew members (‘whistle blowers’) and passengers on board the
polluting vessel. It may also be received from authorities in another State, members of the public,
NGOs, etc.
In order to continue with the investigation, additional evidence would have to be collected.
Nevertheless, the decision to follow-up will depend on the characteristics of the initial indication,
and the priorities and resources of the State in question. At this stage, an assessment needs to be
undertaken on whether or not to proceed based on dialogue between authorities involved. This
might require international cooperation.
48
5.1.2 Step 2: Further investigation and collecting evidence
Evidence collected will be used for four main purposes:

Characterising the spill
The purpose is to determine the exact nature, location, and extent of a spill via remote sensing or
on-site observation which can include taking samples from the spill and to assess the possible impact
on the environment.

Determining the source of the spill
This can be achieved in different ways. Polluters might be caught in the act by surveillance means.
The link between a spill and a polluter can also be made a posteriori or confirmed by other means
such as vessel traffic information systems or information collected on-board.

Proving intent, recklessness or negligence
If it is proven that polluting substances have been discharged with intent, recklessness or serious
negligence, this may have consequences on whether the discharge is regarded as an infringement,
on who is held liable and on the level of penalty.50

Gathering information that could later support the case
Other elements, such as any financial gain that the ship or the company can expect from its (illegal)
behaviour, or the environmental damage that resulted from the discharge, can also influence the
case.
It is important to note that timeliness is a critical element in the collection of evidence. It requires
rapid and coordinated actions from all parties as the time window to be able to get information can
be short: visible evidence of the spill at sea will often weather out in a couple of hours; the ship will
move to other areas; etc.
It is therefore also important to have made arrangements for information exchange before any
violation has occurred, e.g.:



Determination of which information is needed for a successful prosecution
Where this information could be obtained if needed and how this can be done
Ensuring and verifying this information is gathered continually and consistently
Consequently, cross-border cooperation is essential, and should be organised to secure the
collection of evidence even before a formal request for judicial assistance has been made. Care must
be taken to ensure that evidence is collected in such a way that it is later accepted in the courts of
the State building the case.
50
The interpretation of intent, recklessness or negligence is a matter of national responsibility; different
countries may adopt different interpretations. See chapter 7.4 for more information.
49
5.1.3 Step 3: Building the case
The purpose is to decide, based on information available and on legal aspects, which is the most
appropriate action to be taken.

International cooperation
International cooperation can be complex and, in order to be effective, this needs to be organised
beforehand through, for example, establishment of appropriate national procedures. A number of
issues need to be addressed such as the acceptance of evidence collected by officials of another
State. Templates for requesting and passing information can be used to ensure that requests are
clearly understood and that information provided in return is complete and usable.

Assessment of actions to be taken
A number of elements may influence the decision on where and how to bring the case. The purpose
is to decide between the different options. Should the case be addressed through criminal
prosecution or through administrative action? When there is the possibility that the case may be
handled by the flag, port, or coastal State, which should proceed?
5.1.4 Step 4: Post-case actions
Keeping records of actions taken and issues encountered during enforcement procedures is
important to, amongst other things, exchange best practices, determine whether or not a flag State
has repeatedly disregarded its obligations to enforce MARPOL effectively, and build capacity for
intelligence led enforcement.
50
5.2 Overview of steps in the enforcement chain
51
Chapter 6: Initial indication of a possible violation and decision to
follow-up
There are numerous means by which possible pollution at sea may be detected, including aerial
surveillance by satellite or aircraft, reports of pollution sightings from other vessels in the vicinity,
and observations from shore.
6.1 Oil versus other substances
The type of factors which provide an initial indication of a possible violation can vary enormously
depending on the type of violation committed, and in particular on the substance involved. Floating
liquid substances such as mineral oil, or particular types of noxious liquid substances, which cover
large sea areas are visible to radar surveillance and the human eye. This is not the case for
substances which dissolve or evaporate, or for packages or garbage which, if they do float, occupy a
much smaller sea area. This has implications on how authorities involved obtain a suspicion that a
pollution violation has occurred. An initial indication of oil pollution may be provided as a result of a
satellite image; a garbage pollution is more likely to be reported from a visual observation of garbage
being thrown overboard. Documents which pertain to the different substances (e.g. Oil Record Book,
Cargo Record Book, Garbage Record Book) and other evidence obtained on board may also be
sources of initial indications of a violation.
The information in this chapter relates primarily to initial indications of oil discharges, though may
also be relevant for other substances.
6.2 Monitoring and Detection
Sea areas to be monitored are vast while surveillance resources are limited and costly. Monitoring
efforts should be coordinated to ensure an optimised use of time and resources and to develop links
between operational parties. This includes processes on how to pass information quickly to all
authorities in relevant States. The use of standardised reporting methods is essential to ensure
information is complete and clearly understood. Authorities receiving information should also be
organised in order to process it effectively which includes ensuring that information is passed to any
other relevant service or organisation.
Regional Agreements have been very effective in developing cooperation in the field of surveillance:
Coordinated Extended Pollution Control Operations (CEPCO) and Tour d’Horizon flights are good
examples of how such activities can be organised. The standard pollution observation/detection log
currently in use by HELCOM and the Bonn Agreement, provides a good example of a format for
exchange and its use should be extended across Europe (see chapter 10.4).
6.3 Initial indication discovered at sea
6.3.1 Remote sensing
In order to effectively detect spills of substances that could damage the marine environment, it is
necessary to set-up surveillance systems capable of monitoring wide areas at regular intervals. These
systems require a combination of long range detection sensors and of additional sensors including
visual observation for further characterisation of initial detections.
52
Long range detection is mainly based on radar sensors that measure the roughness of the sea
surface. Radars generate electromagnetic pulses that ‘illuminate’ the ocean surface. Radar pulses are
reflected by capillary waves that the wind creates at the surface of the sea (sea clutter). Radar
systems will therefore detect any phenomena that suppress capillary waves. Some substances, for
example oil, smooth the sea surface and reduce the level of the signal returned to the emitter. The
signal is processed into an image where a clean sea will appear as a grey background; oil spills will
appear as dark areas and vessels and platforms as bright spots. Oil, but also other substances and
natural phenomena such as certain current patterns, ice and surface slicks associated with biological
activity, will also appear as dark patterns on the radar image.
Radars are to a large extent able to detect very thin oil films floating at the sea surface day and night
and through the cloud cover. There are limitations to this process as sea roughness is driven by the
local wind speed and direction. Wind speeds below 2-3 m/s mask the dampening effect whereas
speeds above 15 m/s also reduce detection capability.
Figure 13: Impact of wind on radar detections
Trained operators are able to discriminate between natural phenomena and discharges from vessels.
In particular, when an image shows the bright echo of a vessel at the end of a linear dark feature and
when the shape of this feature matches the track of the vessel, there is little doubt that this vessel
has been discharging. The discharged product could be oil but could also be another substance that
would produce the same dampening effect. To confirm the nature of the substance detected and
that the discharge exceeds the legal limits of MARPOL requires the collection of additional
information on site and/or in port.
Two main types of radar are used for oil detection: Side Looking Airborne Radar (SLAR) and Synthetic
Aperture Radar (SAR). The technology differs but operational capabilities to detect oil are similar.
Most marine pollution surveillance aircraft are equipped with SLAR. SAR sensors are used for
satellite detection. More detailed information on these sensors can be found, for example, in the
Bonn Agreement Aerial Operations Handbook (see chapter 10.2).
Satellite and aerial surveillance are complementary and should be used in combination. Satellite are
able to cover wide areas at low cost but can only provide an initial indication of a spill while it is
53
possible with an aircraft to immediately start further on-site investigations and collect evidence that,
in some cases, might be sufficient to prosecute a pollution offence successfully.
Image 2: Area covered by satellite versus area covered by aircraft during one flight hour
Spills in the marine environment weather out quickly51. All efforts should be made to send an aircraft
to check the possible pollution detected by satellite with the shortest possible time delay52.
Consequently, satellite acquisition planning and flight schedules should be coordinated in order to
optimise both the use of satellite surveillance and of aerial surveillance. It should be noted that the
‘Conditions of Use’ of the European satellite-based oil spill and vessel detection service, CleanSeaNet
(see chapter 10.1.1), require that coastal states using the service take the satellite monitoring
schedule into account for the planning of national or regional, response, monitoring and surveillance
resources (e.g. aircrafts, vessels).
Some countries have limited or no aerial surveillance resources dedicated to pollution control. It is
highly recommended that international cooperation mechanisms between coastal States be set up53
in order to maximise chances that aerial surveillance resources are available when needed. Having
an aircraft on stand-by is a possible way to reduce the number of flights while ensuring that
51
See chapter 3.1.
The analysis of CleanSeaNet statistics demonstrates that 50% of spills are confirmed if they are checked
within 3 hours of satellite detection. The rate of confirmation decreases with time.
53
Cooperation should take into account that there may be restrictions regarding aerial surveillance i.e. what a
foreign aircraft is allowed to do in other state’s EEZ or in territorial seas.
52
54
adequate follow-up to satellite detections can be provided. If no spill is detected, flights can be retasked to monitor areas not covered by satellite.
In order to increase the likelihood of catching polluters, surveillance assets should be used in such a
way that main traffic areas are monitored at regular intervals. However, the planning should not be
predictable. Due to orbit constraints, SAR satellite times of passage are known in advance and
cannot be modified54. In order to avoid being detected, ships that intend to discharge illegally might
discharge deliberately between satellite passes. This can be mitigated by using several satellites55
and by planning other surveillance assets in the interval. Areas outside main traffic areas should also
be randomly monitored.
Patrol boats for the initial detection of illegal discharges are less effective than satellites. The range
of ship borne radar sensors for detecting oil pollution is limited. Furthermore, it is not always easy to
visually observe a spill from the bridge of a vessel. A patrol boat is likely to be spotted by potential
polluters well before reaching pollution detection range. However, the presence of government
assets increases the deterrent effect as it gives a clear signal to ship operators that their activities are
closely monitored.
In coastal areas, aerial, satellite and patrol boat surveillance can be complemented by coastal radar
detection. Having access to vessel traffic information, operational authorities are able to monitor
closely and continuously the area within detection range and to detect a pollution event as soon as it
occurs.
6.3.2 Reports received on pollution at sea
It is a legal obligation for all ship masters and platforms to report to the nearest coastal State any
incident involving a harmful substance whether the ship/platform has been involved in the incident
or the pollution was simply observed. Aircraft pilots also have the obligation to report spill
observations. 56
Coastal States receiving initial information about an incident involving harmful substances, have the
obligation to assess the nature of the incident. They should ensure that the report from the
informant contains the following information (if available):



the time and location of incident;
the type and quantity of harmful substance involved;
the identity of ship(s) involved.
If the incident reported presents a threat to safety of life at sea or the environment appropriate
measures should be taken.
54
SAR satellites have polar orbits. The frequency of observations is significantly greater at higher latitudes than
at the equator. With one satellite, a given area can only be covered from approximately once a day in high
latitudes to once every five days at the equator.
55
By using several satellites CleanSeaNet is able to cover European waters several times per day according to
the needs of each individual coastal State.
56
Article 8 and Protocol I of MARPOL 73/78, and article 4 of the OPRC Convention.
55
Coastal States also have a key role in supporting the enforcement of pollution prevention
regulations. National procedures should contain clear instructions on actions to be taken by coastal
stations in order to confirm and/or forward the information received on pollution in order that a
decision can be made on appropriate follow-up actions.
6.3.3 Assessment and follow-up
It is essential that information received is communicated without delay to authorities who have the
power to decide upon follow-up actions. There are a variety of possible actions which can be
conducted in parallel:



sending an asset to the site to check the alleged pollution, or making a request for another
country to perform this check;
in case of an orphan pollution, identifying possible polluters through the combined use of
vessel traffic information systems and of oil drift models (see chapter 9);
when a vessel is identified as the possible source of the spill, communicating this information
to authorities along the route of the vessel and/or requesting an inspection in the next port
of call whether in the initial country or in a third country.
If information is passed to authorities in the next European port of call that a ship is suspected of
having illegally discharged, an inspection of the vessel will be mandatory57. Reporting an alleged
pollution in Thetis will trigger a Port State Control inspection in the next port of a Paris MoU State
(see chapters 2.6.1 and 10.1.4). Pollution reported through the SafeSeaNet system (see chapter
10.1.2) might also prompt action along the route of the vessel. However, authorities making the
request should always consider whether the tool used to convey information is the most appropriate
for enforcement purposes, or whether additional procedures also need to be put in place.
It is important to note that a possible pollution detected on a SAR satellite image may be considered
a sufficient suspicion that a ship has been engaged in a discharge. A growing number of coastal
States use CleanSeaNet detections to trigger inspections in port when vessel traffic monitoring
systems allow the clear identification of the source. A number of polluters have been fined on the
basis of evidence collected during such inspections. It is not always possible, legally or technically, to
prosecute the offender for the pollution observed on the image, even though this was the initial
prompt for the inspection. It is therefore recommended, whenever possible, to send an asset to the
site to characterise the spill. This is not an issue for spills detected by aircraft, as crews should
systematically collect additional evidence for characterising the spill.
As time is critical for collecting actionable evidence, it is an advantage if coastal stations are
authorised to take some of these decisions, in particular to dispatch an asset to the site. Coastal
57
Article 6 of Directive 2005/35/EC of 7 September 2005 on ship-source pollution and on the introduction of
penalties for infringements provides that if “information gives rise to a suspicion that a ship which is voluntarily
within a port or at an offshore terminal of a Member State has been engaged or is engaging in a discharge of
polluting substances into any of the areas referred to in Article 3 (1) that Member State shall ensure that an
appropriate inspection … is undertaken”. Areas listed in the article 3 of the Directive include the high seas.
56
stations should also know at which stage they need to involve administrative or judicial authorities to
formally start an investigation.
In order to facilitate coordination between the different authorities involved in the illegal discharge
enforcement chain, any initial indication of possible pollution should be available not only to
operational contact points responsible for the receipt and transmission of pollution reports, but also
to authorities who have the operational control over surveillance assets.
Coastal stations should be aware that the polluting vessel itself might report a pollution in order to
allay suspicion. This might occur in one of two circumstances: 1) the vessel has polluted but reports a
‘mystery spill’, disassociating itself from the violation which has taken place; 2) if the discharge was
deliberate, but the vessel then has reason to believe the discharge will be discovered.
6.4 Initial indication obtained ashore
6.4.1 Routine inspection
Vessels are regularly inspected in port; this provides an opportunity to identify possible pollution
offences. Routine inspections of vessels can only be undertaken by authorised bodies: Port State
Control; maritime police; and other bodies with recognised powers to do so (in some countries, the
coastguard or navy may have these powers).
The scope and purpose of Port State Control inspections was detailed in chapter 2.6. In the course of
undertaking a routine inspection, a Port State Control inspector may detect a deficiency which
indicates that there has been a MARPOL violation. The indication is likely to be either:


documentary evidence, e.g. a deficiency in the ship records, or
real evidence, e.g. visible evidence that a violation may have occurred, such as the presence
of illegal bypass equipment or tampering with pollution control equipment.
If the deficiency is such that it would be a hazard to the marine environment, the Port State Control
authorities will ensure that the hazard is removed before the ship is allowed to proceed to sea. In
general however, the authorities are under an obligation to avoid unduly detaining or delaying the
ship.
A technical report will be produced as a result of the inspection, and this may later form part of the
judicial file, although it should be reiterated that controls under the MOU are of an administrative
and technical nature and are not always adequate to deliver valid or sufficient evidence for criminal
prosecution purposes.
Depending on the type of deficiency detected, the PSC authorities may contact maritime police or
similar bodies with criminal investigation powers in the port and/or inform other authorities along
the route of the vessel. They should do this whenever there is evidence that illegal practices may
have taken place.
It is recommended that a national procedure is established to support efficient cooperation and
exchange of knowledge between administrative and judicial authorities, particularly between Port
State Control inspectors and counterparts from authorities with powers of criminal investigation. It
should be noted that criminal investigations on ship-source pollution offence have a different scope
57
than Port State Control inspections and require experienced and trained personnel. A number of
documents, such as the Paris MoU procedures for investigations into contravention of discharge
provisions58 or the INTERPOL Manual59 provide valuable information to any person involved in on
board investigations.
Some maritime police and other authorities with powers to undertake inspections or proactive
investigations also conduct periodic routine or ‘spot check’ inspections. This is an effective way to
check for MARPOL violations, and it is recommended that in States where this is not currently
standard, efforts should be made to introduce this practice.
When boarding a vessel either to conduct a routine inspection or based on information received,
investigators should follow established procedures. Outside the Paris MoU framework, investigators
must have appropriate powers or authority under national legislation to board the vessels. In some
countries a search warrant may be required. It is important for investigators who board vessels to be
familiar with vessel operations, or to be accompanied by people with such experience. Such
expertise can be from Port State Control officers, marine surveyors or engineers.
6.4.2 Information received
Information may be received indicating that a possible pollution regulation violation has taken place.
Information can come from a wide range of sources, for example:




from persons on board the suspected vessel, whether crew member or passenger;
from observers on shore;
from another vessel or aircraft in the area;
from a report of pollution washed up on shore or in port.
The practice of a crew member in the employment of the polluting vessel deliberately reporting and
providing evidence of illegal activities is known as ‘whistleblowing’. Whistleblowing is common in the
United States, where it accounts for 50% of new MARPOL cases. This is largely due to the rewards
awarded to whistleblowers, which can be up to half the penalty imposed for the violation. However,
even without such financial incentives, whistleblowing can and does occur in Europe too.
A number of cases related to violation of MARPOL annex V (Garbage) by cruise ships have been
initiated because of information and evidence (e.g. photos) submitted by cruise ship passengers.
6.4.3 Assessment and follow-up
When investigators receive information on a possible violation and schedule an inspection on board,
thorough preparation is needed before boarding the vessel, including ensuring that investigators
have the power to do so under national legislation (this may require, e.g. a search warrant). If
possible, Port State Control and criminal investigators should arrange to board the vessel together.
Everyone should be clear on the purpose of the investigation, what potential regulations may have
been violated (based on information received), and what evidence is required to prove the
58
Paris MoU. 2011. Instruction 44/2011/20: Procedure for Investigation under MARPOL (– Paris MoU –
Confidential)
59
Interpol. 2007. Investigative manual for illegal oil discharges from vessels.
58
violations. During the investigation, other evidence of violations may be uncovered. One person
should lead the investigation and all involved must be clear on their roles.60
When pollution washes up on shore, it can be difficult to determine a) the source of the pollution
and, b) the conditions under which it was discharged. A link needs to be made between the
discharge and a possible polluter. If the substance is unusual, this might be done through a process
of elimination, for example if only one vessel transiting the area in the preceding period has
transported a particular cargo. If the substance was more common, but very few vessels transited
the area, it might be possible to establish a link by taking samples on shore, and sampling on board
the possible vessels. An assessment must be made regarding whether or not to request an
investigation on board or to investigate documentation in relation to, one or more vessels.
60
Further information is available in the Interpol. 2007. Investigative manual for illegal oil discharges from
vessels. Chapter 6.
59
Chapter 7: Collecting additional evidence
The successful enforcement of pollution regulations will very often require collection of evidence
both on site and on board the vessel.
Collecting evidence on site requires rapid and coordinated actions from all parties as the time
window to obtain information can be short: visible evidence of the spill at sea will often weather out
in a couple of hours and vessels can move far away from the position of the pollution. Aircraft and
helicopters, and in particular aircraft equipped with specialised remote sensing equipment, are the
most appropriate assets to investigate on-site initial indications of possible discharges in a timely
manner. Vessels are slower to reach the area and it is more difficult to observe a spill from the bridge
of a vessel than from the air. However, vessels or helicopters are necessary for taking samples or
recovering sampling buoys dropped by aircraft (see below, 7.2.1.2). Vessels have also the capability
to recover garbage floating in the wake of a vessel.
Collecting evidence in port as a result of shipboard investigation will often involve actions requiring
cooperation at national and international level. This should also be done as quickly as possible, when
the evidence is more easily linked to a pollution.
All stages in the collection of evidence are likely to require cooperation between different
authorities. Evidence shall be collected to: characterise the spill; establish the link with the polluter;
prove intent, recklessness or negligence (if this is required); and to otherwise support the case.
7.1 Cooperation in the collection of evidence
Early and informal cooperation is essential in order to ensure that evidence is promptly collected
even prior to a formal request.
At international level, this implies identifying competent authorities in other countries and
developing informal links with them, preferably before a violation occurs. This is greatly facilitated on
a regional basis by informal networks of investigators and prosecutors in constant dialogue with
maritime administrations.
It is important that parties engaged in the collection of evidence have a good understanding of
marine pollution regulations in order to ensure that evidence brought to the case is sufficient and
that evidence is collected and presented in accordance with national requirements of the state that
will prosecute the offender.
7.1.1 Legal powers of investigators
Different sovereign states authorise different individuals or groups of individuals to carry out
investigations into discharges into the sea. These may include police officers, specialist police
officers, Maritime Administration officials, or individual specialist investigators. Whatever their
position, it is essential that they have appropriate appointments and understand the legal basis for
carrying out the investigation.
When evidence is collected by officials from another country, it is important that the requesting
country ascertains under which conditions the evidence can be accepted in court.
60
7.1.2 Procedures for collection of evidence
Crews of surveillance assets and Port State Control inspectors will very often be the first people
involved in collecting information that might later be used as evidence. Therefore, they must also be
familiar with common procedures and methods to collect and exchange information aimed at
proving that a pollution offence was committed. Adequate initial training and periodic refresher
courses should be available. Manuals and handbooks, such as the Bonn Agreement Aerial Operations
Handbook or the HELCOM Guidelines on Ensuring Successful Convictions of Offenders of Antipollution Regulations at Sea, are important tools to disseminate information on best practice
methods and procedures.
In most cases, investigating possible offences of marine pollution prevention regulations involves on
board investigation. The affected coastal State may decide to take immediate action against a vessel,
as permitted under certain conditions by UNCLOS (Article 220), or the vessel might be bound to a
port of the coastal State. In these two instances, the coastal State can undertake the on board
investigation without requesting international assistance. Otherwise, the coastal State will have to
request on board investigation to the State of the next port of call.
Coastal States should develop clear procedures on how to inform port States along the route of a
vessel of a possible violation, and on how to request an inspection. Requests should clearly indicate
what is expected from the inspection and how to report the results, following recommendations on
the collection of evidence. Streamlining this at the level of Regional Agreements brings considerable
added value. Regularly updated contacts and procedures should be maintained by Regional
Agreements for States bordering the respective sea areas.
Within the context of the Paris Memorandum on Port State Control, routine inspection of vessels
calling at ports in European States includes verification of compliance with MARPOL requirements.
Regular inspections conducted in the framework of port State control are likely to be undertaken by
port State control Officers with a more limited remit, while investigations undertaken on board
following a suspected pollution incident may be undertaken by personnel with port State
jurisdictional powers in criminal matters, such as maritime police. The distinctive competencies of
these separate authorities should be recognised, and contact points must be clearly differentiated.
Coastal State authorities either passing information on a possible spill or requesting cooperation
from port State counterparts in another country, should be aware of which authority to contact (it
may be both), and the procedures for doing so.
The use of existing information systems such as SafeSeaNet and Thetis can provide added value for
rapid and simple exchange of information in a standardised way. These information systems will be
presented in Chapter 10:.
7.1.3 Requesting and providing information
One main difficulty for the authority making the request is to describe clearly what is expected from
cooperation partners. The use of standard forms to request and report information that could later
be used as evidence is highly recommended. The North Sea Manual on Maritime Oil pollution
Offences (e.g. ‘Request for Initial Information and Summary Report’) and the Baltic Sea Environment
Proceedings n° 78: Guidelines on Ensuring Successful Convictions of Offenders of Anti-pollution
Regulations at Sea (e.g. ‘Itemised list of possible evidence for collection in case of a suspected
61
violation’; ‘Summation report of evidence collected on a suspected violation of anti-pollution
regulation(s)’) contain useful material.
Furthermore, as national legislation will specify the elements of the offences to be established,
States providing evidence in support of a case should be aware of the requirements of the
requesting State. In particular, the nature of the offence – whether it is absolute61 or not – is also an
important factor. Basic knowledge of jurisprudence and court practices in different countries with
regard to the use of evidence is therefore equally important. Disseminating information on lessons
learnt from relevant cases provides an important contribution.
In most legal systems, it is possible to present in court any type of evidence that is deemed useful to
support the case. Depending on the legal system and practices, some types of evidence carry more
weight, and some may have specific legal consequences such as reversing the burden of proof. In
France for example, this is the case for official statements from government aircraft observers. The
way evidence, such as witness statements and samples, is collected and transmitted should also be
carefully considered.
When physical evidence - such as photos, samples, and documentary evidence - has been collected
which may later be used in court, it is important that clear ‘chain of custody’ procedures are followed
to ensure the integrity and credibility of the evidence. Chain of custody refers to the procedures, and
associated documentation, related to collecting, controlling and transferring evidence. Chain of
custody should be recorded using a standard form, which should indicate: how the evidence was
obtained; that it has been stored securely and under appropriate conditions; all personnel who have
handled the evidence; if and when the evidence has been transferred and how this has been done.
Appropriate chain of custody procedures make it easier to demonstrate the reliability and
acceptability of the evidence, and establish to the court that the evidence is related to the alleged
crime. Particular procedures may exist for certain types of evidence, such as oil samples, which
require specific conditions to be met to maintain the integrity of the evidence.62
7.2 Characterising the spill
Proving a MARPOL violation will require collecting evidence to characterise the spill with
regards to: 1) the type of substance, and 2) the conditions under which the substance was
discharged (such as concentration of discharge, distance from shore, type and speed of vessel).
Additional information on the size of the spill and on its impact on the environment may also have
consequences on inspection and jurisdiction rights of the coastal State and may be used to
determine the level of penalty.
61
In legal systems where “absolute” offences exist, it is sufficient to show that the event which constitutes the
prohibited act took place even if the person responsible was not even aware that the event occurred.
62
For information on how to collect, store, and transport oil samples, see chapter 7.3.5.2.
62
7.2.1
Substance type
7.2.1.1 Substance type determination through visual observation and remote sensing
Oil floating at the sea surface alters the way light is reflected, making visual observation possible if
the concentration is high enough. Concentrations below 50 parts per million (ppm) cannot be
observed. Concentrations between 50 and 100 ppm can exceptionally be observed.63 Consequently,
when MARPOL annex 1 sets a limit of 15 ppm for oil content of effluent, the discharge cannot be
observed.
Conclusions of investigation into oil discharges visibility limits have been endorsed in an IMO
resolution64 stating that ‘A visible trace of oil is an element of proof that the 15 ppm discharge
standard of annex 1 of the MARPOL convention may have been violated’.
The visual appearance of mineral oil at the sea surface depends on the layer thickness. The Bonn
Agreement Oil Appearance Code (BAOAC) is the reference document for observers to describe visual
observation of oil spills in flight reports.
Code
1
2
3
4
5
Description
Sheen
Rainbow
Metallic
Discontinuous True Oil Colour
Continuous True Oil Colour
Layer thickness interval (µm)
0.04 – 0.30
0.30 – 5.0
5.0 – 50
50 – 200
More than 200
Litres per km2
40 – 300
300 – 5000
5000 – 50,000
50,000 – 200,000
More than 200,000
Table 1: Bonn Agreement Oil Appearance Code
The possibility of identifying the type of substance by visual observation will depend on
circumstances. Experienced observers are able to distinguish between natural phenomena such as
cloud shadows or algae blooms, and discharges from ships. When high BAOAC code values are
observed, the confidence level that the substance is mineral oil is high. However, it is sometimes not
possible even for experienced observers to distinguish mineral oil from other products falling under
the annex II of MARPOL, for example when the spill appears only as sheen.
The type of vessel is an important element in the analysis to determine the type of substance
discharges. Vessels such as cruise ships or container carriers are not expected to legally discharge
any substance with a visual appearance similar to oil. For oil tankers outside special areas, discharges
allowed by MARPOL may result in visible traces of oil on the surface.65 The same applies to
discharges of MARPOL annex II products. Consequently, in some cases, proving an annex I or annex II
MARPOL violation will only be possible after an investigation on board the vessel has been carried
out.
63
International Maritime Organization (IMO). 1993. Visibility limits of oil discharges of Annex I of MARPOL
73/78. Marine Environment Protection Committee, resolution MEPC Resolution .61(34): adopted on 9 July
1993: ‘discharges of oily mixture from machinery spaces with a concentration of 15 ppm cannot be observed’.
64
Ibid.
65
Rules set-up by MARPOL (annex 1 – regulation 34) for the discharge of oil or oily mixtures from the cargo
area of an oil tanker may result in concentrations exceeding visibility limits.
63
It is important to emphasise as stated in the North Sea Manual on Maritime Oil Pollution Offence
that ‘direct visual observation is one of the most effective ways of recognising and assessing an oil
spill exceeding the legal limits of MARPOL’. In some Member States visual observation is considered
sufficient for bringing a suspected vessel into port for further investigation, and is accepted in court
as the main piece of evidence. Visual observation official statements should include photos and
videos.
Many European coastal states have developed day/night and all weather marine pollution
monitoring capabilities based on integrated multi-sensor surveillance systems mounted on low flying
aircraft. Information obtained from different sensors - Side Looking Airborne Radar (SLAR),
Infrared/Ultraviolet Scanners (IR/UV), Microwave Radiometers (MWR), Low Light Level Television
camera (LLLTV), and Laser-Fluorescence Sensors (LFS), etc. - is combined with navigational data to
provide an overall picture of the spill in terms of extent, location, and thickness. However, only LFS
would be able to provide information on the type of substance.
Detailed information on visual observation and airborne remote sensing capabilities, and on how to
collect, record, and document data on a spill a can be found in the Bonn Agreement Aerial
Operations Handbook, 2009 and in the North Sea Manual on Maritime Oil Pollution Offence.
Visual observation during daytime, and LLTV and Forward Looking InfraRed (FLIR) sensors at night,
can also be used to detect the disposal of garbage in violation of the annex V of MARPOL.
7.2.1.2 Substance type determination through sampling
‘Sampling’ refers to the process of taking samples for the identification of a substance, providing
information on the physical and chemical properties of the substance. Samples can be taken at sea
(for substances in/on the water), on board vessels, and onshore.
Taking samples at sea is one possible way to determine the substance of a spill. One of the main
practical challenges is to physically recover the samples before the spill weathers out. Samples can
be taken directly by helicopter or boats, which is be problematic if the spill occurs far from the coast.
The use of sampling buoys dropped by aircraft can overcome this issue by reaching the site rapidly.
The buoys must then be recovered from the sea by a boat or a helicopter, and analysed in
accordance with approved procedures by accredited laboratories.
Whatever technique is used to take samples, it is important to be able to prove that they were taken
from the right location in order that there is no doubt that the sample was taken from the slick itself.
Whenever possible, samples should be taken from various points of the slick and also from
surrounding clean waters.
Sampling is undertaken primarily when there is a suspicion of mineral oil; sampling procedures and
analysis have been developed extensively in this area, and can provide very complete information on
the type of oil spilled. The results of the sampling will show what type of mineral oil it is, e.g. bilge
water, cargo tank washing, etc, which may prove useful later in the investigation. It will also indicate
if it contains other substances such as lubricating oils. Detailed analysis can provide an ‘oil
fingerprint’.
The sample analysis may reveal that the substance is not mineral oil. When the substance is not
mineral oil, the analysis will still provide information on the type of substance involved. Investigator
64
and prosecutors must determine whether any pollution regulations were being violated or not.
Many MARPOL annex II and III substances, ranging from vegetable oils and paraffin to toxic
chemicals such as nonylphenol also form ‘slicks’ that can be detected by surveillance assets when
being discharged from vessels. Whether or not a violation has occurred depends on the substance
and the conditions. Results of sampling analysis may not be as detailed as for mineral oil, but
nonetheless may be sufficient for investigators and prosecutors to secure evidence that the
substance in question was illegally discharged.
Proper procedures must be followed at all times in order to ensure that samples are taken properly,
stored appropriately, and, if necessary, transported carefully. Analysis of samples is undertaken by
specialised accredited laboratories. Authorities involved in taking samples should be familiar with
techniques of sampling; authorities involved in investigation and prosecution should familiarise
themselves with how to request a sample from an accredited laboratory, and should know how to
interpret the results which are returned. Investigators and prosecutors should also identify oil
sampling experts who are considered to be objective and neutral, and can be accredited by the
Courts. They should know how to request input of such experts in preparing a case and, if necessary,
for giving evidence in court.
A network of oil sample identification laboratories and experts has been formed under the name
OSINET (Oil Spill Identification Network)66.The main purpose of the cooperation is to give mutual
assistance, to maintain a high level of professionalism and to accredit laboratories. In case of large
spills in which two or more countries are involved, the laboratories will compare analysis results.
For more information on practical aspects of sampling, please refer to the Bonn Agreement Manual,
Chapter 32: Guidelines for the Exchange of Oil Samples/Results between countries, and to the
European Committee for Standardization (CEN) guideline, CEN/TR 15522 Oil spill identification Waterborne petroleum and petroleum products. CEN/TR 15522 consists of two parts: Part 1,
describing sampling at sea; and Part 2, on the analysis and interpretation of the results.
There are not only substantial practical difficulties involved in taking samples at sea (much more so
than for taking samples on shore, for example), but also high costs involved in sending assets to the
scene, in getting the sample analysed, and in calling expert witnesses to court.
In many cases, it will not be possible to obtain samples. Proving the type of substance via other
means (visual observation, inspection in port) should be sufficient to successfully prosecute the case.
It is therefore generally acknowledged that while sampling can bring valuable additional information
to a case, it should not be obligatory in order for a case to advance.
7.2.2 Conditions of the spills
The principle set up in MARPOL is to prohibit the discharge of any substance that could present a risk
to the marine environment and only to authorise exceptions under certain conditions. Depending on
the type and age of vessel, and on the type of substance, MARPOL might impose conditions on 1) the
66
Information about OSINET, a list of participating laboratories and reports of the annual Round Robins can be
found on the OSINET section of the BONN Agreement website (www.bonnagreement.org).
65
speed of the vessel; 2) the location of the discharge; 3) the concentration of the effluent expressed in
parts per million (ppm), on quantities spilt in litres per nautical mile, or on total quantities as a
percentage of the particular cargo.
The condition that the vessel must be en route is imposed to ensure that ‘any discharge is spread
over as great an area of the sea is reasonable and practicable’67. Speed conditions apply for noxious
liquid substances on the same principle. Therefore, it is important that evidence collected includes
all information on the track and speed of the suspected vessel whether observed by surveillance
assets, required from the vessel68, or extracted from vessel traffic information systems.
MARPOL annexes also include different conditions depending on the location such as a minimum
distance from the coast, a minimum depth of water. The fact that the ship is in a ‘special area’ is also
an important factor to take into consideration. The information collected on track and speed will also
be used to assess if the conditions on location were satisfied.
Proving that the concentration of the effluent exceeds the limits of MARPOL is more difficult. In
some cases, information collected at sea will not bring decisive evidence that the quantities spilled
exceed the legal limits.69 Proving a MARPOL violation on these grounds will require a shipboard
investigation.
The detailed examination of the ship records such as tank sounding records and cargo record books,
checking the consistency of information, checking if it matches with information collected at sea and
extracted from information system should enable experienced investigators to determine whether a
spill constitutes a MARPOL violation.
7.2.3 Other characteristics of the spill
Criteria such as the size of the spill or the impact on the environment cannot help to establish
whether a MARPOL violation was committed or not. However, it is important to collect this type of
information for two reasons:


It has legal consequences on the powers of the coastal state for inspecting the vessels and
institute proceedings70.
The size of the discharge and the damage to the environment are likely to influence the
decision as regards the level of penalty imposed.
67
See unified interpretation to regulation 15.2.1 of the revised MARPOL annex 1: “En route means that the
ship is underway at sea on a course or courses, including deviation from the shortest direct route, which, as far
as practicable for navigation purposes, will cause any discharge to be spread over as great an area of the sea as
is reasonable and practicable. (Added by MEPC.55)”.
68
See UNCLOS art 220 for the powers of the coastal State to require information from suspected vessels
(identity, last and next port of call and other relevant information required to establish whether a violation has
occurred) and consequences if information is not provided or inconsistent with factual evidence.
69
Information collected at sea may sometimes be sufficient, e.g. where oil discharges are limited to 15 ppm,
annex II discharges, discharge pipe over the waterline, speed and distance to shore not in line with regulations.
70
See UNCLOS article 220
66
The method how to estimate the volume of an oil spill based on the Bonn Agreement Oil Appearance
Code (BAOAC) can be found in the Bonn Agreement Aerial Surveillance Handbook. It is possible by
visual observation only to provide an estimate of the minimum and maximum amount of oil visible at
the surface. The accuracy can be improved by using other sensors like the Side Looking Airborne
Radar (SLAR) for mapping the spill. However, this method only provides an order of magnitude and
cannot be applied to other substances than oil. Proving what actual quantities were discharged will
again require that an investigation is carried out on board the vessel.
There is no similar method for estimating quantities of substances other than oil based on visual
observation and remote sensing information. Therefore, in the case of liquid noxious substances
creating a sheen on the sea surface, only an investigation carried out on board the suspected vessel
will bring sufficient evidence to prove that an annex II discharge has exceeded the limits permitted
by MARPOL. For other MARPOL annexes, investigation on board is also likely to be required.
The damage to the environment is addressed in the section on impact assessment.
7.3 Establishing the link with the polluter
Determining the source of pollution can be achieved in different ways. The link between a spill and a
polluter is obviously established when a vessel is caught in the act of discharging. The link can also be
made by other means such as vessel traffic information systems or information collected on board.
7.3.1 Ongoing discharge detected by aircraft or satellite
Ongoing discharges from vessels will usually be detected by SLAR equipped aircraft or on SAR
satellite images. Whenever possible, all efforts should be made to catch polluters in the act.
When the initial detection has been obtained by an aircraft, given the limited detection range of
airborne sensors, the aircraft is nearby and able to reach the scene without much delay. This
increases the chance of catching the polluter in the act.
As satellite images cover wider areas, it might take longer for an asset to reach the position of an
ongoing discharge detected on an image. It is extremely important to minimise delays between a
satellite observation and dispatching the aircraft in order to increase the likelihood that the vessel
will still be in the act of discharging when the aircraft reaches the site.
Whether the vessel is still discharging or not, identification details, position and track of the vessel
(name, IMO number, etc.) should be collected and accurately recorded. Information gathered should
clearly demonstrate that the vessel was not sailing through a pre-existing slick but was actually the
source of the spill being investigated.
67
Image 3: Picture showing clean water in front of the vessel with a slick behind
Visual observation statements, records of optical systems, traffic positions of all vessels in vicinity
based on radar detection, and AIS information are also useful to prove the link between the vessel
and the spill. It is important to report if the discharge stopped when the ship discovered the
presence of the surveillance asset. Visual observation statements should be corroborated by
photographs and videos.
The combined use of aerial and/or satellite information and of vessel traffic information system data
can support the identification of potential polluters. In CleanSeaNet, the identity of the possible
source is part of the oil spill alert report. In case the aircraft arrives after the suspected vessel has
stopped discharging, satellite images can be used as evidence to prove the link between the vessel
and the spill. Information collected by the aircraft together with other information coming from
vessel traffic information systems or resulting from an investigation carried on board the vessel
should provide proof that the vessel observed on the satellite image and connected to the spill is the
same as the one identified by the aircraft.
7.3.2 Information provided by the vessel itself
If interrogated on radio by surveillance assets and/or shore stations, a vessel in the exclusive
economic zone or territorial water of a coastal State has the obligation to report to that State its
identity, last and next port of call and other relevant information that could be required to establish
whether violation occurred71. The vessel may admit the discharge and indicate the type of substance.
Even if a vessel claims to be legally discharging MARPOL annex II or IV substances, authorities should
71
See UNCLOS article 220
68
check that the information reported on the type of substance is correct, that it is not mixed with
other products, and that conditions imposed by MARPOL such as distance from the coast, water
depth or ship speed are met. It should be noted that proving the violation of some of these
conditions can be achieved without the need to collect evidence on site.
Image 4: CleanSeaNet evidence that a discharge took place within 12 nautical miles of the coast
7.3.3 Identifying the source of ‘mystery’ or ‘orphan’ spills
An oil spill, before it weathers out, may persist on the sea surface for a period of time. The length of
time depends on the type of oil - from a couple of hours for light oil products, to several days for
heavier products – and on weather conditions. Spills of other substances, for example annex II
substances will persist on the surface for varying lengths of time depending on the properties of the
product in question. Immediately after the substance has been discharged, it will start drifting with
wind and current and changing appearance and properties. It is possible for experienced operators
to assess if a spill is recent or not, but extremely difficult to determine the precise age. Therefore,
the identification of the source is not always easy and sometimes impossible in dense traffic areas.
The main method used to identify the source of a mystery spill involves combining vessel traffic
information with the results of drift model. Two approaches are possible: the backtracking approach
or the forward tracking approach.
The backtracking approach is the most commonly used. Starting from the spill observation time and
position, the drift model makes a backward calculation in order to check if, in the hours preceding
the discovery of the spill, the backtracked position and shape of the spill could reasonably match the
track of one or more vessels. Tools such as SeaTrackWeb72 allow the simultaneous display on a map
of drift model results together with AIS information. A replay function is used for operators to
visually identify vessels whose track matches the spill at a given time.
72
SeaTrackWeb is the official HELCOM oil drift forecasting system in the Baltic Sea
69
The forward tracking approach consists of simulating a scenario where all vessels passing in vicinity
of the observed spill have been discharging an oily substance. Hypothetical spills are therefore
generated along the track of each of these vessels. The drift model is run from the time of the
hypothetical spill until the time of observation of the actual spill. Suspicious vessels are the ones for
which the drift prediction of the hypothetical discharge match best the position and shape of the
observed spill.
It should be noted that models can also be used to eliminate vessels from the list of possible sources
and reduce the number of investigations.
However, most drift modelling tools have been designed to support response operations to
accidental spills and work best when the substance and the quantity spilt are known. This is rarely
the case for illegal discharges. In particular, discharge of oily residues from machinery spaces, i.e.
bilge, consists of a mixture of a variety of products. Nonetheless, models may be used effectively as a
first approximation to identify suspect vessels.
7.3.4 Identifying a vessel disposing of garbage illegally
When garbage is recovered from the sea or found after it was washed up on shore, the analysis of
the content might bring evidence of the identity of the perpetrator, for example documents in the
name of the company.
7.3.5 Information collected on board suspected vessels
Documentary, witness, and physical evidence can contribute to establish the link between the
inspected vessel and the pollution. Taking samples on board can also support the identification of
the polluter.
7.3.5.1 Documentary, witness, and physical evidence
The cross-examination of the ship records should enable experienced investigators to establish the
link between a spill observed at sea and the vessel. The navigational log should be checked against
vessel’s track collected on-site by surveillance assets or from other sources, and compared to other
documentation. If the ship has illegally discharged, this should result in discrepancies in the vessel
records. Particular attention should be paid to the Oil Record Book, the Cargo Record Book, any
receipts (oil receipts, port reception facility receipts), and tank sounding records. Interviews and
physical evidence can also bring corroborating information on where and when the discharge took
place.
The INTERPOL Manual provides valuable information on how to conduct shipboard investigation, to
collect documentary and physical evidence, and to interview crew members.
7.3.5.2 Sampling
Another possible method to prove the link between the spill and the polluter is to take samples from
the vessel and to check if they match those taken at sea or onshore. It should be noted that, in
addition to positively identifying the culprit, samples can also be used to eliminate possible suspects.
Samples should be taken from all vessels identified as being a possible source of the pollution. It
might be feasible to take samples from a number of vessels if the pollution took place in port or at
anchorage. In case of ship-source pollution at sea, sampling all vessels in the vicinity is not likely to
70
be an option and a request for inspection in the next port of call should be made only when there is
a reasonable suspicion.
Discharges at sea can result from the disposal of various types of ship-generated oily waste (e.g. tank
cleaning, discharge of bilge waters, etc.)73, as well as from other substances (e.g. those classified as
liquid noxious substances). Samples from on board the vessel will only match those of the spill if they
are taken from the tank or the pipes from which the product was spilt. Given the variety of ship
installations depending of the type and size of vessels, of the number of tanks and wells, the
selection of sampling points is critical. It is better to take samples from all potential sources rather
than miss the opportunity to do so. National legislation may impose conditions such as the number
of samples from each sampling point or on the volume of the samples. When the request for
sampling is sent to another country, these requirements shall be clearly indicated.
The laboratory provides a detailed analysis of the substance, which has particular unique
characteristics; in the case of oil, this is termed an oil ‘fingerprint’. Even though each oil product has
a unique fingerprint, when different sorts of oil are mixed, as happens frequently on board vessels,
the particular combinations produced are even more distinctive. This is particularly true for waste
products, for example, in the case of bilge. Comparisons of the samples taken should be done in
laboratories in accordance with the European Committee for Standardization guideline, CEN/Tr
15522-2.
Although oil fingerprints are unique, interpreting the data to match two samples is complicated.
Both the samples taken on board and the samples taken at sea will have undergone changes: for
example, further mixing of on board oil; weathering of oil at sea; evaporation of lighter products; etc.
Consequently, a ‘one to one’ match is not usually obtained. The method compares the non-volatile
and stable components of the oil or oil product and gives, when relevant, a match conclusion based
on ‘no significant differences’. The expert report should clearly explain the reasons why the samples
do not match exactly, and emphasize that the samples may nonetheless be from the same source.
Otherwise, there may be a risk that the defendant will use the absence of an exact match to cast
doubt upon the evidence.
7.4 Proving intent, recklessness or serious negligence
In some countries, violation of pollution regulations are absolute or strict liability offences. In other
countries, it may be necessary to prove that the act of discharging polluting substances (the ‘actus
reus’) was accompanied by some form of prior knowledge of the possible consequences (‘mens rea’),
i.e. that polluting substances were discharged due to intent, recklessness or serious negligence. This
can have consequences on who is held liable and on the type and level of penalty imposed.
Directive 2005/35/EC states that ‘ship-source discharges of polluting substances should be regarded
as infringements if committed with intent, recklessly or by serious negligence.’ The European Court
of Justice defined serious negligence in its judgement in the case C-308/-06, Intertanko and others, in
the following way: ‘“serious negligence” within the meaning of Article 4 of Directive 2005/35 must
73
Issues linked with taking samples from the sea have addressed elsewhere.
71
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’. The detailed interpretation of
intent, recklessness and serious negligence is, however, a matter of national competence, and it is
the responsibility of each State to provide definitions in the national legal acquis.
The following definitions may be useful to provide a generic indication of the commonly understood
meaning of the terms when used in a criminal law context:
‘Intentionally’ – A person ‘intentionally’ causes the social harm of an offense if: (1) it is her/his
desire (i.e., her/his conscious object) to cause the social harm; or (2) she/he acts with
knowledge that the social harm is virtually certain to occur as a result of her/his conduct.
‘Negligence’ – Criminal negligence (as opposed to civil negligence) ordinarily requires a
showing of a gross deviation from the standard of reasonable care. A person is criminally
negligent if she/he takes a substantial, unjustifiable risk of causing the social harm that
constitutes the offense charged.
‘Recklessness’ – A finding of recklessness requires proof that the defendant disregarded a
substantial and unjustifiable risk of which she/he was aware.
Distinction Between Negligence and Recklessness – The line between ‘criminal negligence’ and
‘recklessness’ is not drawn on the basis of the extent of the defendant’s deviation from the
standard of reasonable care — the deviation is gross in both cases — but rather is founded on
the defendant’s state of mind. Criminal negligence involves an objective standard – the
defendant, as a reasonable person, should have been aware of the substantial and
unjustifiable risk she/he was taking; recklessness implicates subjective fault, in that the
defendant was in fact aware of the substantial and unjustifiable risk she/he was taking but
disregarded the risk.74
In the context of ship-source discharges of polluting substances, proof of intent could include, for
example, the discovery of a bypass switch or magic pipe75, an email from the company condoning
illegal discharges, or falsification of record books. An example of recklessness might be failure to
check that the vessel is beyond the 12 nm zone before starting a discharge which is permitted at
such a distance, inadequate pollution prevention equipment76, or postponing repairs when it has
been observed that equipment is not functioning effectively. Evidence of negligence could include
practices such as failing to undertake proper maintenance checks, poorly implemented Safety
Management Systems, inadequate training for staff, etc. These examples are for illustrative
74
LexisNexis, 2007, LexisNexis Capsule Summary: Criminal Law. Accessed online, 02 May 2013:
http://www.lexisnexis.com/lawschool/study/outlines/html/crim/crim05.htm
75
See detailed description, including photos, in Interpol. 2007. Investigative manual for illegal oil discharges
from vessels, p. 28
76
MARPOL requires ships to be fitted with certain pollution prevention equipment (e.g. oil filtering equipment,
oil discharge monitoring and control systems, oil content meters, oil/water interface detectors). This
equipment should be approved by the issuing government, and should comply with the related IMO guidelines.
72
purposes only, and ultimately it is the court trying the case which determines the different forms of
‘mens rea’.
Establishing ‘mens rea’ relies primarily on three types of evidence: witness evidence, physical or
‘real’ evidence, and documentary evidence. This is usually collected through investigation on board
or on shore. When evidence is being requested and/or transferred between different authorities,
particularly authorities in different countries, care should be taken to follow proper procedures. For
all types of evidence, ‘chain of custody’ documentation should be maintained.
7.4.1 Witness evidence
Witness evidence can be given by anyone with information pertaining to the case. This includes crew
(usually Captain, deck personnel, and engine room personnel), but may also include ship operators
and charterers, witnesses such as cruise ship passengers, observers from other vessels or aircraft,
amongst others. Some witnesses may come forward voluntarily, some even as initial informants
(‘whistleblowers’), whilst others will be identified by the investigators.
Witness evidence is most commonly obtained through interviews. Most pollution surveillance and
law enforcement agencies have established policies, practices, and protocols for the collection of
witness evidence. This includes guidelines on who should conduct interviews, how interviews should
be conducted and how they should be transcribed. The transcribed document may also need to be
translated from the language in which the interview was conducted, to the language of the country
undertaking the interview and/or to the language of the requesting country.
7.4.2 Physical/’real’ evidence
Physical proof of intent, recklessness or serious negligence, otherwise termed ‘real’ evidence, can be
found by inspecting the vessel. Attention should be given to the general state of maintenance,
particularly in the engine room and machinery spaces. In rare cases, irrefutable evidence of intent
may be found in the form of pipes and bypassing equipment for direct overboard discharges. In
addition, investigators should be alert for evidence that illegal practices have been covered up, such
as bolt heads without paint or newly painted, and modified Oil Water Separators. Checking the of
outlet line containing processed water from the OWS could also bring decisive evidence.
7.4.3 Documentary evidence
Documentary evidence includes vessel documents, ranging from vessel identity certificates to
operational records such as oil record books. In some countries, certified copies will be accepted
when the case goes to court; in others, the originals may have to be presented.
Documentary evidence may also comprise letters and records held by the agent, operator, charterer
or other body. Instructions from the operator to the vessel are sometimes revealing, and may
include, for example, advice such as where the vessel should not discharge illegally, implicitly
recognising that the vessel will discharge illegally in other areas. Sometimes evidence of this type will
also serve to raise suspicions regarding violations across a fleet of vessels, and can be useful not only
in the individual case, but also in bringing the company to court for systematic fleet-wide violations.
73
7.5 Additional evidence to support the case
Other elements, such as any financial gain that the ship or the company can expect from its (illegal)
behaviour, or the environmental damage that resulted from the discharge, can also influence the
case.
7.5.1 Impact assessment
The environmental and socio-economic impact caused by pollution is determined by a range of
factors, including: type of oil; physical, biological and economic characteristics of the location;
amount and rate of spillage; and time of year.
If a discharge committed in the exclusive economic zone of a state is substantial, if it is causing or
threatening significant pollution of the marine environment, if it is causing major damage or threat
of major damage to the coastline or related interests of the coastal State, or to any resources of its
territorial sea or exclusive economic zone, all these elements have legal consequences on the powers
of the coastal for inspecting the vessels and institute proceedings77. The interpretation of substantial
discharge, significant pollution, and major damage may vary depending on national legal systems
and jurisprudence but appropriate evidence should be collected to support the case.
Pollution at sea, particularly near the coastline, may have a tangible impact on the environment.
Authorities may undertake to monitor the importance and extent of such impacts, in both the short
and long term. This may provide additional information on the nature of the pollution which could
influence the decision of authorities on whether or not they should open a case, and/or could have a
bearing on the level and type of penalty, or costs recovered from the polluter, if a case is successful.
Any additional proof of damage to the environment should be brought to the case as long as it is
possible to link it with the pollution initially indicated.
7.5.2 Financial gain
Showing financial gain can help support a case by providing a ‘mens rea’, and may be useful once the
case is taken to court in order to ensure that the level of the fine is sufficiently high that, as a
minimum, it negates any profit the vessel may have accrued from illegal activities. Investigators
should therefore take note of indications that the vessel has been cutting costs, for example,
through discharging waste overboard rather than treating it or disposing of it to proper reception
facilities, or through failing to repair equipment. Other forms of financial gain include bonuses paid
to officers for keeping operating costs low, or for delivering cargo before the deadline, sometimes by
missing essential portside operations such as discharging waste to port reception facilities.
7.5.3 Vessel and fleet history
Information should be gathered, when possible, on the past history of the individual vessel, the
company and registered owner, and the charterer. Port State Control and police reports, databases,
news articles, and court publications are all potential sources of information. Searches should be
done by using unique identifiers (for example, IMO numbers, which apply to vessels, companies, and
owners), as well as vessel names. This may uncover past violations by the vessel in question, or
77
See UNCLOS article 220
74
violations by the company or owner. In addition to strengthening the case in question, such
information could lead to a new investigation with a wider remit.
When investigations are conducted related to a company or owner, international cooperation may
be required in order to request investigations on board all the vessels concerned. This should be
done as quickly as possible, to limit the likelihood that incriminating evidence will be destroyed.
75
Chapter 8: Concluding the case
8.1 Assessment of actions to be taken
After all available evidence has been collected, there is a need to decide whether this is sufficient to
bring the case to court, or whether other actions would be more appropriate. There are a number of
aspects to be considered.
8.1.1 Where the case should be brought
Although European Union States may have jurisdiction to prosecute pollution offences anywhere,
including the high seas, in general the state that it is best placed to pursue the matter through the
courts will probably manage the case. It may be that the coastal State where the incident occurred
has some evidence, the port States of the vessels origin and destination will have some evidence, as
well as access to the ship, and the flag State may also hold evidence. If they are all one and the same
State then it is clear where the matter should be heard, but if they are not then it is a matter for
negotiation between the States, taking into consideration the requirements of UNCLOS Articles 217,
218, 220 and 228.
8.1.2 Transfer of case
Under certain conditions, proceedings instituted by a port State or a coastal State might be
suspended upon the taking of proceedings by the flag State (UNCLOS, article 228). For violations
committed within its internal waters, territorial sea, or exclusive economic zone, a coastal State may
also request that a port State suspends a case in order for the coastal State to institute proceedings
(UNCLOS, article 218). When a case is to be transmitted, the evidence and records of the case have
to be transferred. Some elements (e.g. bond and financial security) depend on the case in question.
8.1.3 Who should be prosecuted
The investigation should identify who is responsible for the pollution, whether it is an individual
shipboard act, system or equipment failure, or a management oversight failure. It may of course be a
combination, such as an equipment failure caused by lack of management oversight of the
maintenance regime. All European States should now have the facility to prosecute individuals or
companies and although in some jurisdictions pollution is a strict liability offence (that applies
liability regardless of how the incident occurred), it is appropriate to ensure that through the
evidence obtained during the investigation, the culpable party is charged.
By issuing an International Safety Management (ISM) certificate, the ISM manager also has
environmental responsibility and could potentially be prosecuted.
8.1.4 Criminal v. Administrative
Within the scope of Directive 2005/35/EC, all discharges in violation of MARPOL committed with
intent, recklessly, or with serious negligence shall be regarded as criminal offences with the
exception of minor cases where the act committed doesn’t cause deterioration in the quality of
water.
Practice in Europe varies. Some European States treat even minor discharges as criminal; whilst
others depending on the case, can levy administrative fines in lieu of criminal prosecution.
Interpreting which should be considered a minor case and what constitutes a deterioration of the
quality of water is a matter of national competency. Administrative sanctions can have a strong
76
deterrent effect and be an appropriate solution when the circumstances of the case would make the
outcome of criminal prosecution uncertain.
It should be noted that States have more scope to opt for administrative procedures for discharges
not covered by Directive 2005/35/EC78.
8.1.5 Presenting the case in court
When putting the case together for presentation in court, consideration must be given to whether
information gathered from other authorities is acceptable to the court as evidence, taking into
consideration the manner in which it was collected, the format in which it is presented and the
manner of the transfer from one jurisdiction to another and the continuity of evidence that may be
involved.
The case report format, from Investigator to Prosecutor and Prosecutor to the court, is a matter for
individual states to determine. There may be extensive use of pre-formatted forms or there may be a
free text approach, depending on the national system in place.
8.1.6 Costs to be borne by the polluter
In addition to the fines imposed on the polluter, authorities should, where possible, claim other
costs. These may include the recovery of the costs of the investigation, damages for environmental
harm, and clean-up costs.
The possibility to confiscate criminal gain obtained from the illegal behaviour should also be
considered.
8.2 Feedback
There are a number of legal obligations on States to provide feedback on actions taken against ships
suspected of violating anti-pollution regulations.
Port States and coastal States have the obligation (UNCLOS, article 231) to promptly inform the flag
State of enforcement measures taken against its vessels, and should also inform any other State
concerned. A flag State that has received a request to investigate an alleged violation by one of its
vessels shall inform the requesting State and the IMO of actions taken (UNCLOS, article 217).
Directive 2005/35/EC as amended also requires that, following an inspection in port, if the inspection
reveals facts ‘that could indicate an infringement … the competent authorities of that Member State
and of the flag State shall be informed’ (article 6.2). It also states that flag States should be informed
of any enforcement measures taken by coastal States (article 7.3).
Clear procedures should be established either at national or regional level on how to report
information on actions taken and to whom. The HELCOM feedback report79 is a good example of
78
It should be noted that this Directive only covers Annex I and II of MARPOL.
HELCOM. 2000. Baltic Sea Environment Proceedings n° 78: – Guidelines on Ensuring Successful Convictions of
Offenders of Anti-pollution Regulations at Sea, – Format 3.
79
77
how a flag State may fulfil its obligations to report actions taken upon receiving evidence that one of
its ships was suspected of violating anti-pollution regulations.
8.3 Documenting the case comprehensively
Clearly documenting all aspects of what has taken place - from the procedures used for investigation,
to the key details of the case in court, to the eventual outcome - is important. A comprehensive case
file provides a firm basis for all other actions, from reporting obligations to publicising the outcome,
and means that an authorised person even without first-hand knowledge of the case can later access
the file and quickly identify relevant information.
Chapter 9: Post-case actions
Effective post-case actions can contribute to and promote a number of positive outcomes. Post-case
actions include, but are not limited to:
9.1 Fulfilling mandatory reporting obligations and voluntary reporting
procedures
There are a number of legal obligations on States to provide feedback on actions taken against ships
suspected of violating anti-pollution regulations. These include the obligation to between flag, port
and coastal States for the prosecuting State to keep other affected States informed of any actions
taken (UNCLOS articles 217 and 231).
The MARPOL Convention (article 11) requires the parties to the Convention to communicate to the
IMO certain types of information which includes ‘an annual statistical report, in a form standardized
by the Organization, of penalties actually imposed for infringement of the present Convention’.
Formats for a mandatory reporting system under MARPOL 73/78 have been defined in IMO
MEPC/Circ.318 dated 26 July 1996. The reporting system in place should allow the effectiveness of
the application of the Convention to be assessed. In practice, the level of reporting is low80 and
information transmitted to the IMO is limited.
Aggregate information collected at European or international level, if it were to be available, could
also contribute to:
•
•
•
identify those flag States that repeatedly disregarded their obligations to enforce
international legislation (UNCLOS article 228, MARPOL article 11);
identify patterns of violations across Europe;
provide comparative data for standardising enforcement across Europe, for example in
levels of fines.
80
International Maritime Organization (IMO). 2012. FSI 20/4 20 December 2011 Analysis and evaluation of
deficiency reports and mandatory reports under MARPOL for 2011. Flag State Implementation Committee, FSI
21/42010.
78
9.2 Providing feedback across the enforcement chain
Active feedback should be given by ensuring that all individuals involved in the law enforcement
chain have been informed of the outcome of the case, irrespective of whether the prosecution was
successful or not (although if the case was not successful, there may be more stringent limitations on
what information can be shared). Feedback can be a motivating force if shared across the
enforcement chain. It allows pollution surveillance operators and on board investigators, who are
often more involved in the initial stages, to obtain a better idea of what actions are effective or when
procedures should be improved. In addition, successful prosecution based on these initial actions
justifies the allocation of resources to these activities by the responsible authorities.
One alternative means of providing feedback is through the use of databases, though authorities
with access to these should be proactive in using them. Some databases have already been
constructed to share information between selected communities of interest. The North Sea Network
maintains a qualitative database containing information on cases of particular interest to
investigators and prosecutors, detailing the outcome. Many Aquapol members are populating a
common database that provides brief reports on results of criminal inspections on board vessels,
MarpolWeb; this is shared between Aquapol police forces and law enforcement organisations.
Despite possible legal restrictions on disseminating information, all parties involved in the
enforcement chain should make an effort to identify what information can be shared and with
whom. Even when it is not possible to share identity information (e.g. vessel name or number), it
may still be possible to share the investigation experience.
Compiling information on real cases is important in order to:
•
•
•
uncover different types of practices related to illegal discharge of polluting substances;
indicate why convictions sometimes fail (e.g. a regular lack of particular types of
evidence) and to improve links and procedures of the enforcement chain;
build a body of knowledge which can be used for intelligence led enforcement through
developing vessel and fleet history and to comply with article 11 of MARPOL.
9.3 Disseminating information on particular lessons learnt or issues of
interest
Exchange of information between interested parties through workshops and meetings, for example
Regional Agreement Technical Groups or Networks of Prosecutors, is also an effective way of sharing
best practice and collecting successful tips for prosecution. Compiling lessons learnt can also
highlight some of the criteria to consider when assessing successful enforcement practices and to
direct attention to areas of particular concern. Meetings and training events can be used to provide
specific feedback on how different surveillance practices, information systems or investigation
techniques may be useful to support enforcement actions.
Disseminating useful information increases the likelihood that enforcement will be pro-active and
comprehensive, taking in to account a broader range of actors across the chain and patterns of illegal
behaviour. It also enables States to learn from the experience of others and develop awareness of
best practice. However, care should be taken that in more public forums, information is only
disseminated, when permitted, on convicted polluters. Confidentiality of data – rules regarding
which differ from country to country – should be respected.
79
9.4 Reviewing and improving existing procedures and updating guidance
information
On a periodic basis, existing procedures and guidance should be reviewed and updated. This should
be done at a European level to ensure that information on effective practices and procedures being
implemented at Member State level are disseminated more broadly, to increase harmonisation
between different states, and to update guidelines to take into account new developments such as
alterations to information systems. At Member State level, reviews should be regularly undertaken
to ensure that new legislation or government changes to the structure of government organisations
are taken into account in training and guidance. Best practice and lessons learnt from around Europe
should be reflected.
9.5 Publicising information on the outcome of a case
Publicising information on the outcome of a case serves a number of purposes. Most importantly, it
has a strong deterrent effect on criminals; those deliberately engaging in illegal practices for financial
gain become more wary of doing so, and those who are negligent become more aware of the
consequences of not ensuring good maintenance, training and application of best practice on board
vessels. However it also: disseminates information on illegal practices to the broader public; raises
public awareness of what the justice system is doing to combat crime; encourages individuals with
knowledge of criminal behaviour to come forward; enables comparison between countries on issues
such as levels of fines; and builds up a body of knowledge which can be used for intelligence-led
enforcement.
In many cases, sentences handed out in criminal court are part of a public record. Publicising
outcomes to a wider audience is seen in many countries as a way of increasing the transparency and
accountability of the criminal justice system, and is done as normal practice. Other countries have
more restrictive policies. Respecting the limits imposed by national guidance on publicising
sentencing outcomes, parties working for the effective enforcement of marine pollution regulations
should, as far as possible, make this information available.
80
Chapter 10:
Cooperation tools
Cooperation between countries involved in the pollution regulation enforcement chain can be
facilitated and streamlined through various tools. Information systems have become an essential
element for quickly exchanging information in a structured way and services have been developed at
EU level in recent years. Manuals are also important to share experience and disseminate best
practices. At any stage of the process, authorities should be aware of which procedures to apply. This
requires establishing list of contacts and defining standardised forms.
10.1 EU Information systems
Streamlining and accelerating the exchange of information between maritime authorities on shipsource pollution, on vessel movements, and on the condition of ships that call in European ports is a
key element to ensure a high level of environmental protection in maritime transport.
European legislation includes a number of obligations regarding the implementation of such
information systems. At a European level, EMSA hosts and operates a number of operational
systems: CleanSeaNet, the European satellite-based oil spill and vessel detection service;
SafeSeaNet, the European vessel traffic monitoring and information system; the European Union
Long Range Identification and Tracking Cooperative Data Centre (EU LRIT CDC); and Thetis.
Information made available through these systems, even if not always explicitly designed for
enforcement purposes, can be extremely valuable to authorities engaged in combatting illegal
discharges. Combining information from more than one system reinforces the added value to be
obtained. It should be noted that not all authorities will be able to gain access to all systems; this
should be ascertained on a case-by-case basis.
10.1.1 CleanSeaNet
Directive 2005/35/EC tasked EMSA to ‘work with the Member States in developing technical
solutions and providing technical assistance in actions such as tracing discharges by satellite
monitoring and surveillance.’ The Agency has set up and operates CleanSeaNet, the European
satellite-based oil spill and vessel detection service. CleanSeaNet covers all European sea areas and,
for a number of coastal States is the only remote sensing tool available to detect and monitor oil
spills at sea. The service is based on the near real time81 analysis of synthetic aperture radar images
in order to detect possible oil spills on the sea surface. When a possible spill is detected within the
alert area of a participating coastal State, an alert is immediately sent to the relevant authorities in
the coastal State. Vessel traffic information based on e.g. Automatic Identification Systems (AIS) data
extracted from SafeSeaNet is used in CleanSeaNet to identify, whenever possible, the source of the
spill.
CleanSeaNet can provide in near real time a clear indication of the location and the dimensions of a
possible floating pollution but cannot discriminate the type of pollution. Consequently satellite
detections have to be verified on the spot. As spills weather out quickly, it is recommended that
81
For satellite images covering 400 km by 400 km, the service is delivered to authorities in the coastal States
within 30 minutes. For images of different dimensions the time varies slightly.
81
CleanSeaNet be used in combination with aerial surveillance. This is a cost effective solution in order
to avoid flying over areas where no spills have been detected by satellite and to be able to ensure
appropriate follow-up to CleanSeaNet detections whenever necessary. When coastal States cannot
verify on site, the possibility to request an inspection in the next port of call should be considered.
CleanSeaNet satellite images are acquired in segments of up to 1 400 km and swaths82 of up to 500
km. Consequently, most satellite images cover the waters of more than one coastal State. The best
use of the service leads to increased cooperation between neighbouring countries in a number of
areas. This includes planning satellite and aerial surveillance activities, exchanging information on
pollution events and with respect to implementing follow-up actions. The CleanSeaNet system has
been designed to facilitate this cooperation in particular for planning satellite acquisitions. In the
Baltic Sea, for example, IWGAS83 is responsible for defining the total operational needs for satellite
images for the each of the three Baltic Sea satellite monitoring sub-regions.
According to the service conditions of use, users must enter feedback into CleanSeaNet to report the
results of on-site verification activities. This feedback is immediately available to neighbouring
countries. It is recommended that information on follow-up actions such as inspections in port of
suspected polluters or any other enforcement actions are also reported. CleanSeaNet statistics
based on feedback provided by the users, should be used to evaluate trends and to identify areas
where surveillance effort should be concentrated.
During annual CleanSeaNet User Group meetings, coastal States are encouraged to share their
experiences in using the service in enforcing pollution prevention regulation.
10.1.2 SafeSeaNet
Directive 2002/59/EC, as amended, established a Community vessel traffic monitoring and
information system ‘with a view to enhancing the safety and efficiency of maritime traffic, improving
the response of authorities to incidents, accidents or potentially dangerous situations at sea,
including search and rescue operations, and contributing to a better prevention and detection of
pollution by ships’.
SafeSeaNet consists of a network of national maritime information systems, interconnected with a
central system which was developed and is now operated and maintained by EMSA on behalf of the
Commission. SafeSeaNet enables the ‘receipt, storage, retrieval and exchange of information for the
purpose of maritime safety, port and maritime security, marine environment protection and the
efficiency of maritime traffic and maritime transport’. This information is made up of the following
notifications:
82
83

AIS based position (sent by vessels and received by shore based installations) and Mandatory
Reporting System (MRS);

pre-arrival, arrival and departure;

dangerous or polluting goods (HAZMAT) and
Swath coverage refers to the width of the strip covered by the radar at each overpass.
HELCOM Informal Working Group on Aerial Surveillance
82

Incident Report
These notifications are sent by designated authorities in participating countries.
‘Coastal stations’ (vessel traffic services, shore-based installations for a mandatory reporting system,
and bodies responsible for coordinating search and rescue operations or operations to tackle
pollution at sea) can have access to SafeSeaNet once authorised by the SafeSeaNet national
competent authority.
Coastal stations holding information that a vessel poses a potential hazard to shipping or a threat to
maritime safety, the safety of individuals or the environment, shall communicate this information to
coastal stations concerned in the other Member States located along the planned route of the
vessel. This is achieved in SafeSeaNet through a system of incident reports. The system can only be
efficient if Member States ensure that, as required in Directive 2002/59/EC, information received is
transmitted to the relevant port authorities and/or any other authority. Comprehensive information
and advice on how and when to report incidents and accidents in SafeSeaNet is available in the
EMSA SafeSeaNet Incident Report Guidelines.
Special attention should be given to the two following types of incident report which are particularly
relevant for combatting illegal discharges at sea: the Pollution Report and the Waste Incident Report.
A Pollution Report should cover any situation that is liable to lead to the pollution of the waters or
coastline of a Member State or for reporting those ships for which there is proof or presumptive
evidence of deliberate discharge of oil or other infringement of MARPOL. Waste Incident Reports are
to notify the States along the planned route of a vessel that this vessel has not complied with the
requirements of Directive 2000/59/EC for the delivery of ship-generated waste and/or cargo
residues to a port reception facility. It is recommended that surveillance authorities have access to
this information because such vessels might present higher risks of illegally discharging. It should be
noted that, within the limits of their available staff capacity, an EU Member State receiving a
SafeSeaNet POLREP should carry out the appropriate inspections or verifications.
Other information available in SafeSeaNet might be useful. Estimated and actual times of arrival and
departure are automatically passed to Thetis to support the process of selecting vessels for
inspection. Ship movement information contained in SafeSeaNet could also be used by enforcement
authorities, for example to establish the location and speed of a vessel at a particular time.
Information on cargo could also support the assessment of the situation after an initial indication of
a possible pollution. This information is limited to HAZMAT. Mandatory Reporting System messages
may also include a summary of cargo information.84
Should enforcement authorities want to use information available in SafeSeaNet as evidence in
court, it should be formally requested from the country that provided the information to the system.
84
Mandatory Ship Reporting Systems (MRS) are established by governments, with the endorsement of the
IMO, in areas of particular environmental or navigational concern. Vessels transiting through the area send
MRS messages to nearby coastal stations.
83
10.1.3 The European Union Long Range Identification and Tracking Cooperative Data
Centre (EU LRIT CDC)
The Council Resolution of the 2 October 2007 tasked EMSA to set-up the EU LRIT CDC and stressed
‘that the objective of the EU LRIT DC should include maritime security, Search and Rescue (SAR),
maritime safety and protection of the marine environment, taking into consideration respective
development within the IMO context’.
The objective of the LRIT system, which was set-up under the auspices of the IMO, is to bring about a
global system for the identification and tracking of ships that allows monitoring also when ships have
left the areas covered by the AIS coastal networks. This means ships can be tracked all over the
world even from very large distances from the coast. The international LRIT system therefore
receives, stores and disseminates LRIT information on behalf of all SOLAS Contracting
Governments.85
The LRIT system is mandatory for all passenger ships, high speed craft, mobile offshore drilling units
and cargo ships of over 300 gross tonnes and is in force from 1 July 2009.
The system specifies that Flag States should ensure as a minimum that four position messages per
ship per day (every 6 hours) are sent, stored, and are available for those parties entitled to access
LRIT information. The main users of the system are the following:




Flag States demanding information on the location of their vessels irrespective of their
location;
Coastal States may request information on ships up to 1000 nm from their coasts
irrespective of their flag;
Port States may request information on those ships that have declared to have one of their
ports as destination, irrespective of their location or flag (on receipt of the Notice of Arrival);
Search and Rescue authorities.
An active and accurate long-range identification and tracking system has potential maritime safety,
marine environment protection, and maritime search and rescue benefits. Accurate information on
the location of the ship in distress as well as ships in the vicinity that could lend assistance for
combatting illegal discharges at sea will save valuable response time to affect a timely rescue and
perhaps minimise pollution along a coastline.
Relevant for combatting illegal discharges at sea, ship movement information contained in the EU
LRIT DC could also be used by enforcement authorities after an initial indication of a possible
pollution. Should enforcement authorities want to use information available in the EU LRIT DC as
evidence in court, it should be formally requested from the country whose vessel provided the LRIT
position data to the system.
85
Contracting Governments means Contracting Governments to the 1974 International Convention of Safety of
Life At Sea (1974 SOLAS Convention)
84
10.1.4 Thetis
EMSA is engaged in facilitating the correct and smooth functioning of the Paris MoU’s New
Inspection Regime (NIR). To that effect, the Agency has developed an advanced information system
called Thetis, which contains all the functionalities stemming from the requirements of the Directive
2009/16/EC and the Paris MoU. The system is hosted, maintained and operated by the Agency.
The mechanism by which the NIR targets ships for inspection is based on the ship risk profile (SRP).
Thetis calculates and attributes to each ship in the database a risk profile which is updated daily. It
ranks ships into Low Risk Ships (LRS), Standard Risk Ships (SRS) and High Risk Ships (HRS). A ship risk
profile is based on criteria such as its type, age, flag, recognized organization, inspection history and
notably, managing company (the International Safety Management manager). Consequently, the SRP
determines the periodicity of inspection. In addition to the periodic inspections, additional
inspections may be carried out in case of ‘overriding‘ or ‘unexpected factors’ depending on the
severity of the occurrence.
Thetis also calculates the inspection share of the inspection commitment of each Paris MoU Member
State. Thetis monitors missed inspections, and at the same time allows postponing an inspection and
for recording of the reasons for missed inspections.
Another important feature of Thetis is the processing of ship call information. The system receives
ship arrival and departure information from SafeSeaNet. Connections have been established with
Canadian and Russian equivalents of SafeSeaNet which allow Thetis to work as the central system of
the Paris MoU. Thetis uses this ship call information to automatically indicate the ships due for
inspection. All EU Member States are required through the Directive 2009/16/EC to have in place the
necessary arrangements to facilitate the reporting of the actual time of arrival (ATA) and the actual
time of departure (ATD). In case of estimated time of arrival or departure (ETA, ETD) shipowners,
masters, agents or operators are required to forward the necessary information to SafeSeaNet
according to the Directive 2002/59/EC, as amended.
With regard to the use of Thetis for enforcement purposes, Authorities should be aware that if an
‘overriding factor’ is entered into Thetis inspecting the vessel becomes mandatory regardless of the
date of the last inspection. This ‘overriding factor’ can only be entered by PSC Authorities. Entering
information into Thetis about an alleged pollution is a way to trigger an inspection in the next port of
call within the Paris MoU region. However, the system has primarily been designed for
administrative processes related to PSC. Though section 6 of the Paris MoU tasks participating
Authorities with securing evidence of suspected MARPOL violations, Thetis is not designed to
request or exchange evidence for enforcement purposes. Adding this kind of information would be
technically feasible but would require a decision to extend the scope of the system beyond what was
originally foreseen.
10.2 Manuals and procedures
Manuals and procedures are extremely important to disseminate best practices and organise
cooperation both nationally and internationally. In particular, they can help strengthen
harmonisation which is particularly important given the number of different systems in place across
Europe.
85
Many documents have a focus on a particular area, but contain information which is applicable more
broadly. In addition to widespread use of the documents as they currently stand for the generic
advice, they can be used as templates for the development of similar documents in regions where
these do not yet exist. In particular, regional manuals should include forms and templates for
exchanging information in a standardised way.
Whilst there are many different manuals available at all levels, users of this manual may be
particularly interested in the following selection86:
1. INTERPOL. 2007. Investigative manual for illegal oil discharges from vessels
This manual provides useful information to both experienced and inexperienced
investigators. It contains detailed information for inspectors conducting investigations on onboard vessels. Its scope is international. The list of Interpol publications is available on their
site: http://www.interpol.int/Crime-areas/Environmental-crime/Resources/Publications. The
manual is available in English to institutional users via a password protected website;
authorities should make a request via the form available on the Interpol website,
www.interpol.int;
full
address:
http://www.interpol.int/Forms/EnvironmentalCrimeRestrictedAccess
A translation in French is available on CD at the INTERPOL Secretariat.
The manual also includes useful checklists, for example, the Comparison of Vessel Records
(appendix 9) and Vessel Sampling checklist (appendix 11).
2. OSPAR Commission. 2010. North Sea Manual on Maritime Oil Pollution Offences This manual
is addressed, in the first place, to the national enforcement agencies concerned with
implementing international rules and standards against oil pollution from ships, and the
national legislation applying them. The manual therefore aims to set out a common
understanding of the impacts of oil pollution, how evidence of maritime pollution offences
can be gathered, and the reliability of the methods used. It is also addressed to those
involved in the processes of bringing offenders to justice.
The manual is available on the OSPAR website, www.ospar.org; full address:
http://www.ospar.org/html_documents/ospar/html/north_sea_manual_on_maritime_oil_p
ollution_offences.pdf
3. HELCOM. 2000. Baltic Sea Environment Proceedings n° 78: Guidelines on Ensuring Successful
Convictions of Offenders of Anti-pollution Regulations at Sea
These guidelines are meant as a tool to further the cooperation between the Baltic Sea
states when investigation violations of anti-pollution regulations and prosecuting the
offenders. It is intended to be used by operators collecting evidence and by prosecutors
assessing collected evidence and bringing it to the courts to convict offenders. The guidelines
aim to establish a feedback system between the two abovementioned communities and
86
This selection has provided a very valuable source of information for this overview document.
86
thereby to enhance the knowledge and understanding of the conditions and the
requirements under which they both work.
The guidelines are available on the HELCOM website, www.helcom.fi; full address:
http://www.helcom.fi/stc/files/shipping/BSEP-78.pdf
4. ENPRO. 2012. Manual on Prosecuting Environmental Crime in the Baltic Sea Region
This manual is written by member States of the Network of Prosecutors on Environmental
Crime (ENPRO). It is mean to serve as a handbook for prosecutors and other authorities who
work on environmental crime and require information about the judicial system and
legislation in the Baltic Sea States.
The manual is available on the HELCOM website, www.helcom.fi; full address:
http://www.helcom.fi/stc/files/shipping/Manual%20on%20Prosecuting%20Environmental%
20Crime.pdf
5. Bonn Agreement. 2009. Bonn Agreement Aerial Operation Handbook
The Handbook is designed to provide management and aircrew with brief but essential
information for the planning and conduct of counter-pollution flights. It describes remote
sensing techniques, cooperation in aerial surveillance operations such as CEPCOs or Tour
d’Horizon, and reporting formats. ‘Part 3: Guidelines for oil pollution detection, investigation
and post flight analysis/evaluation for volume estimation’ is of particular interest. It includes
the ‘Bonn Agreement Oil Appearance Code’ which is widely used throughout Europe.
The handbook is available on the Bonn Agreement website, www.bonnagreement.org; full
address:
http://www.bonnagreement.org/eng/doc/Bonn%20Agreement%20Aerial%20Operations%2
0Handbook.pdf
10.3 List of contacts
At the different stages of the enforcement process, international cooperation requires contacts with
various authorities. It is therefore necessary to know how to quickly access contact details of
relevant bodies (e.g. operational contacts points for surveillance operation, maritime police and port
State control officers, judicial authorities). Cooperation is needed from across different communities
of stakeholders (e.g. Regional Agreements, networks of prosecutors, MoUs) to ensure that contacts
are kept updated and are disseminated as widely as possible.
The following lists of contacts should be developed and/or made available to authorities involved in
the anti-pollution enforcement chain:
1. List of contact points 24-hour to manage requests received from another State for further
investigation of a suspected violation of a MARPOL regulation
When a request is received, the contact point should forward the request to the relevant
authority in the same country depending on whether this investigation shall be conducted at
sea or in port. In order to facilitate cooperation between states, there should be just one
contact point for receiving the initial request.
For example: Table 7 in Baltic Sea Environment Proceedings n° 78: Guidelines on Ensuring
Successful Convictions of Offenders of Anti-pollution Regulations at Sea.
87
2. List of contact points for inquiries about the status of a case on a suspected violation of an
anti-pollution regulation
For example: Table 8 in Baltic Sea Environment Proceedings n° 78: Guidelines on Ensuring
Successful Convictions of Offenders of Anti-pollution Regulations at Sea.
3. List of points of contacts for mission planning, scheduling and operations
This list of points of contact is useful to plan surveillance missions in cooperation with
neighbouring countries. It should include the list of authorities responsible for satellite
surveillance planning.
For example, the HELCOM response manual (volume 1, section 7.10) includes a list of contact
points for joint aerial surveillance in the Baltic
4. List of contacts for in-flight reporting
Aircrew detecting or observing pollution should pass information by radio communication to
the appropriate focal point.
For example: In the Bonn Agreement area, these focal points are listed in the Bonn
Agreement Aerial Operation Handbook, Part 4: National Information.
5. List of points of contacts for post-flight detection reporting
Points of contact for post flight reporting might be different from the ones used for in-flight
reporting.
6. List of contact points for PSC matters
This list should also include the contacts of all Secretariats of Memoranda of Understanding
on Port State Control.
Some lists of contacts are mandatory and available on the IMO’s GISIS website:
7. Flag State contact points for PSC matters, casualty investigation services and ships' inspection
services (including Secretariats of Memoranda of Understanding on Port State Control)
8. List of national operational contact points responsible for the receipt, transmission and
processing of urgent reports on incidents involving harmful substances, including oil from
ships to coastal states
These contacts are available to authorised users via the IMO’s Global Integrated Shipping
Information System (GISIS), http://gisis.imo.org/. GISIS electronic reporting facilities also allow
Parties to IMO instruments to provide all or part of the information covered by existing reporting
requirements.
10.4 Standard forms for exchanging information
The use of standard forms and templates is essential for requesting and passing information
between stakeholders. This ensures that elements exchanged are complete and correspond to what
was requested. Agreed standards should be incorporated in national procedures and known by all
parties involved.
There are a number of templates available, the widespread use of which is recommended across
Europe.
1. Standard Pollution Observation/Detection Log. This template is common to the Bonn
Agreement and HELCOM, and can be found in the North Sea Manual on Maritime Oil
Pollution Offences (Chapter 6, annex A), and as an excel file on the HELCOM website.
88
2. Pollution Observation/Detection Report on Polluters and Combatable Spills (IMO). This
template can be found in the North Sea Manual on Maritime Oil Pollution Offences (Chapter 6
annex B), and as an excel file on the HELCOM website.
3. Request for Initial Information and Summary Report. This form developed by the North Sea
Network of Investigators and Prosecutors can be found in the North Sea Manual on Maritime
Oil Pollution Offences (Chapter 5, annex 1). It is used to quickly and informally request and
exchange information on available evidence prior to a formal legal assistance request. This
request should be sent to the relevant contact point for inquiries.
4. HELCOM Summation Report for the summation of evidence collected on a suspected
violation of anti-pollution regulation(s) under the Helsinki Convention, Baltic Sea Environment
Proceedings n° 78, format 2.
5. HELCOM Feedback Report for feedback on a suspected violation of anti-pollution
regulation(s) under the Helsinki Convention, Baltic Sea Environment Proceedings n° 78,
format 3.
6. Letter of Undertaking For Financial Security, INTERPOL Investigative Manual for illegal oil
discharges from vessels (appendix 13)
7. Notice of Detection of Vessel And Posting Of Security, INTERPOL Investigative Manual for
illegal oil discharges from vessels (appendix 14)
8. Netherlands Coast Guard Pollution Prevention Report for Observed MARPOL Substances. This
form is used to pass on information about suspected MARPOL violations, including MARPOL
annexes I-VI.
In future, the use of electronic exchange of information between IT systems is expected to grow. The
definition of standard interfaces should incorporate the different elements contained in the forms
used for pollution regulation enforcement.
89
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91
About EMSA
The European Maritime Safety Agency is one of
the European Union’s decentralised agencies.
Based in Lisbon, the Agency provides technical,
operational and scientific assistance to the
European Commission and Member States in
the fields of maritime safety, maritime security,
prevention of, and response to, pollution
caused by ships as well as response to marine
pollution caused by oil and gas installations.
The Agency also contributes to the overall
efficiency of maritime traffic and maritime
transport.
http://www.emsa.europa.eu
EUROPEAN MARITIME SAFETY AGENCY
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