Criminal sanctions in relation to ship-source pollution
Senior Legal Officer, Royal Belgian Shipowners’ Association
To Professor David J. Attard, an advocate dedicated to the consolidation of international rules on the law of the sea.
In 2005 the EU adopted its own legislation on sanctions against ship-source pollution: Directive 2005/35/EC1 and Framework Decision 2005/667/JHA.2 Four years after this European legislative process, away from the charged and emotional atmosphere following a pollution incident, and miles away from any heavy public and politic debates, this chapter will highlight the ship-source oil pollution spills issue and makes a qualified analysis of the two pieces of legislation.
This contribution first places ship-source oil pollution in the context of the global marine pollution issue. Second, it analyses those acts that are subject to penalties or sanctions under EU legislation. Third, it determines who may be held liable and what the sanctions are. Finally, this chapter assesses the extent to which the two laws contribute to EU maritime safety policy. In so doing, the author modestly tries to answer Commissioner Barroso’s invitation when presenting the new European Maritime Policy: ‘We need the expert input of those who spend their lives in the maritime world. We hope that the business community will play a vigorous role in this process.’3
Oil ship-source pollution
Ship-source oily wastes
Like any other vehicles with fossil-fuel engines, all ships create oily residues (engine residues). Additionally, oil tankers, carry oil cargo with possible oily
1 Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 on ship-source pollution and on the introduction of penalties for infringements, OJ, L 255, 30 September 2005.
2 Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal law framework for the enforcement of law against ship-source pollution, OJ, L 255, 30 September 2005.
3 Speech by Mr M. Barroso, President of the European Commission, at the conference on the presentation of the new European Maritime Policy, 17 November 2005.
As far as all ship engines are concerned, and – as already mentioned – oceangoing vessels, like cars, generate large amounts of waste oil.4 Readers will keep in mind that, beside the main engine, present-day vessels have various auxiliary engines producing electricity, steam, clean water, high-pressure air, etc. all located in the engine room. All these engines use engine fuel and oil lubricant which generate waste oil: ‘bilge waste’ or ‘bilge water’. Bilge water5 is the collective term for various wastes including water, oil, fluids dispersants, solvents, chemicals and particles coming from operational sources such as technical rooms, propulsion systems and other on-board machineries.
As far as tanker cargo residues are concerned, when cargo oil tanks are empty, the washing of said tanks might be needed either because the next cargo is of another nature (heavy fuel versus light fuel) or because of the accumulated gases generated by the oil cargo itself. Tanks washing used to create environmental concerns because to release such cargo residues or gas once the tanks were empty, tanks were filled up with seawater to the top; at the end of the operation the seawater charged with cargo residues was dumped into the sea without prior treatment. Nowadays, however, this practice has been replaced by the crude oil washing (COW) technique. Some confusion still exists in daily language and especially with the wording ‘dégazage’6 but it must be clearly stated that beside tanker accident or wilful mishandling or inherent deficiency of the material itself, ‘tankers do not longer pollute with cargo-related causes since they do no longer use seawater to clean their tanks or to release the gas concentration’.7
4 For an easy comparison, a ship generates waste oil like a car does. Both must keep their waste, their oil residues, and to hand them over regularly to recognised reception facilities. In the case of a car, the garage operator will keep the oil residues from the motor when making the oil change and will then hand it over to a recognised treatment facility.
5 The bilge literally speaking is the compartment at the bottom of the hull of a ship where water collects so that it may be pumped out of the vessel at a later stage.
6 In French, many references to the wording ‘dégazage’ for voluntary oil pollution which is actually today an error of language since the ‘dégazage’ is actually the freeing of accumulated gas created by the cargo gas emanations by the inflating of inert gas in the cargo tanks with the aim of avoiding accumulating pressure and explosion. The misunderstanding is probably a heritage of the past practice where empty tanks were cleared of their gas by using seawater.
7 J.-D. Troyat, ‘Pollution par hydrocarbures et transport maritime’, AFCAN, 2006, p. 4. Available at: www.afcan.org; Troyat adds ‘En fait, un pétrolier peut néanmoins être amené à utiliser de l’eau de mer pour laver ses citernes dans deux cas: en vue d’une réparation (soudure et meulage) dans celle-ci ou si une cargaison déterminée nécessite un tel lavage. L’eau de lavage est récupérée dans des citernes dédiées appelées “slops” où elle est décantée. Elle est ensuite rejetée à la mer dans les conditions très strictes décrites plus “haut”.’ Slops are actually the ‘monopoly’ of tankers: they are the oil residues flowing from the cleaning of crude oil cargo tanks.
Ship-source and other sources of oil pollution
To the extent that the sources of ship-source oily wastes are known and that the matter is covered by international law, what part do ship-source oil spills play in the global picture of marine pollution? The sources of marine pollution are unfortunately various. According to United Nations Environment Programme (UNEP), 80 per cent of marine pollution comes direct from land-based activities,8 with 10 per cent from indirect land-based pollution (atmospheric pollution) and 10 per cent from marine-based activities (fisheries, maritime traffic and offshore platforms all together).
This proportion includes oil pollution. According to UN figures, the sources of marine pollution by oil may be summed up as follows:
(a) the vast majority of oil pollution is from domestic car oil use and from runoff from land, and municipal and industrial waste sites. Every year oily road runoff from a city of 5 million could contain as much oil as one large tanker spill;
(b) offshore oil production can cause ocean oil pollution, from spills and operational discharges;
(c) legal bilge cleaning (the 15 ppm rule) and other ship operations contribute to an accumulation of thousands of individual discharges of a few gallons each. Major tanker accidents count for only 5 per cent of oil pollution in oceans.
According to the UN Atlas of the Oceans, oil is actually a land-based source of pollution.9
According to Troyat, it is now estimated that all in all, for all sources concerned (land-based, sea-based, atmospherically based), about 3 million tons of oil are yearly spilled into the seas. The ship-source part of it is figured out at 0.3 million tons,10 i.e. both operational and accidental ship discharges amounted to a maximum of 10 per cent of the total sources of oil pollution. In comparison with the 1.5 million tons 30 years ago,11 it even represents a reduction of about 80 per cent while the maritime world traffic has increased by 100 per cent over the last 30 years.12
9 UN Atlas of the Oceans, Oil Industry, 2000. Available on-line at: www.oceansatlas.org.
10 Op. cit., Troyat, fn 7, p. 1.
11 D. Cuisine and J. Grant, The Impact of Marine Pollution (London: Croom Helm Ltd, 1980), p. 42; R. Skjong and E. Vanem, et al. Design, Operation and Regulation for Safety (Study for the EU Commission, Safedor, 21 October 2005), p. 47; See also the very interesting aerial surveillance report from the Bonn Agreement: Bonn Agreement, Annual Report on Aerial Surveillance for 2007, 2007, p. 12.
12 A close look at the data reveals that international seaborne trade has been multiplied by 2.2 (3,700 million tons in 1975 and 8,200m. tons in 2005) while the oil ship-source pollution has been reduced by 4.6! UNCTAD, Review of Maritime Transport 2005, p. 5.
Maritime accidents count only for a limited proportion of ship-source pollution. Voluntary discharges are unfortunately responsible for the largest part.13 Nonetheless, as far as tankers are concerned, it is now estimated that 99.9997 per cent of the total quantity of crude oil and refined oil are delivered safely:14 tankers are of a much higher quality than in the past, with as correlation a reduction in pollution risks. This increased safety as well as consolidation in the tanker market have made the latter attractive to both investors and risk-averse investors. Investments by non-corporate, private investors in joint ship limited partnership fund for instance, are the financial evidence of the much safer oil transport.
According to the UN Atlas of the Oceans ‘Despite the publicity that oil spills always attract, even in 1979, only a small fraction of the oil entering the sea comes from tanker accidents’ and one can estimate that oil pollution from ships probably reached its peak in 1979.15
It is generally accepted that the significant decrease of operational releases and accidental spillages is due to new IMO Regulations, e.g. the MARPOL Convention.16
Infringements and offences
The MARPOL Convention, the international applicable regime, provides for the prohibition of deliberate discharge, the authorization of operational discharges provided they fully comply with specific restrictions and the exoneration of accidental discharge under specific conditions.
With Directive 2005/35/EC and Framework Decision 2005/667/JHA the motivation of the European legislator for initiating repressive legislation is based on two postulates: the MARPOL Convention is ignored on a daily basis and only penalties may have valuable deterrent effects on the failure to obey this international rule.17 The stated aim is accordingly to approximate the definition of infringements and their related exemptions (Recital 5 Directive 2005/35/EC).
13 Exact figures are not available but we estimate the level of wilful discharges as being four to 10 times bigger than that of accidental pollution.
14 E. Mitropoulos, IMO Secretary General, IMO News, no. 3, 2005, p. 5; see also J. Fawcett Elis, ‘The political environment surrounding safe shipping’, International Chemical & Oil Pollution Conference, Singapore, 28 September 2005; op. cit., Troyat, fn 7, p. 3: tankers accidents account for only 10 per cent of the total ship-source pollution.
15 UN Atlas of the Oceans, Oil Industry, 2000. Available on-line at: www.oceansatlas.org. Figures about operational discharges are very vague. Estimations for 1990 ranges from 410,000 to 2.5m. tons a year: op. cit., Skjong and Vanem et al., fn 11, p. 47; some studies even mention a figure of up to 3.6m. tons for 2003: WWF, Rapport sur la pollution marine par hydrocarbures et les dégazages sauvages en Méditerranée, 2003, p. 10; of key importance in such circumstances is to look at the methodology used. In the WWF case, the methodology reveals that estimates are based on a scenario where ‘all tankers systematically wash their oil cargo tanks with seawater’ which of course is certainly not the case. In such circumstances on might wonder if these figures are reliable.
16 Op. cit., Skjong and Vanem et al., fn 11, p. 48; UN Atlas of the Oceans, above, fn 9.
17 Recital 3, 4 and 7 of Directive 2005/35/EC.
The combined reading of the Directive and the Framework Decision reveals that the new EU legislation does not identify infringements, but that it provides a number of criteria and, that, second, it starts from the postulate that all infringements other than minor cases must be considered as criminal offences (Art. 2(1) of Framework Decision; Art. 4 of Directive).18
This background establishes the tough approach of the European law (criminal offence as a matter of principle) and it makes it important for practitioners to identify both the constitutive elements of the law-breaking acts and the ‘minor cases’. Indeed the constitutive elements will help to determine when a law-breaking act has taken place and the identification of ‘minor cases’ will determine which law-breaking acts are to be sanctioned in a criminal way (offence) and those which must be sanctioned in an administrative way (infringement).
As a matter of basic legal principle, law-breaking acts and sanctions may indeed only be either of a criminal or administrative nature and never both at the same time (Art. 8(1) Directive).19 Should this not be the case, the basic principles of proper justice would be infringed.20
The liability test
It is common practice to identify the constitutive elements of infringements, the so-called liability test, by the two criteria: the material element (ratione materiae) and the intentional element (mens rea).
As far as the material element of the law-breaking act is concerned, the EU law has opted for a large scope by providing for a general prohibition principle: any release of oil or noxious liquid substances howsoever caused from any ship, irrespective of its flag, into any areas is regarded as infringement (Arts 2 and 4 of Directive 2005/35/EC).21
This large material element must be combined with an intentional element, the mens rea, identified in the Directive as being either the intention, the reckless
18 Article 2(1) of Framework Decision: ‘Subject [to minor cases] each Member State shall take the measures necessary to ensure that an infringement within the meaning of Articles 4 and 5 of Directive 2005/35/EC shall be regarded as a criminal offence.’ Article 4 of Directive 2005/35/EC provides also that discharges regarded as infringements ‘are regarded as criminal offences by, and in the circumstances provided for in, Framework Decision 2005/667/JHA supplementing this Directive’.
19 Article 8(1) of the Directive: ‘Member States shall take the necessary measures to ensure that infringements within the meaning of Article 4 are subject to effective, proportionate and dissuasive penalties, which may include criminal or administrative penalties.’
20 One cannot have an administrative and a criminal proceeding running at the same time for the same fact. Should this not be the case conflicting rulings could emerge for the same fact.
21 Article 2 of the Directive: ‘polluting substances’ shall mean substances covered by Annexes I and II of MARPOL; ‘discharge’ shall mean any release whatsoever caused from a ship, as referred to in Art. 2 of MARPOL; Art. 4 of the Directive: ‘Member States shall ensure that ship-source discharges of polluting substances into any of the areas referred to in Article 3(1) are regarded as infringements if committed with intent, recklessly or by serious negligence.’
The EU legislation therefore opts for a very wide prohibition principle of any release of oil and noxious liquid substances (i.e. MARPOL Annex I and II substances). Any discharge of oil with or without consequence on the environment will be regarded as infringement if and only if, committed with intent, recklessly or by serious negligence.
If the material scope seems clear, the intentional element raises certain queries, especially as far as ‘serious negligence’ is concerned. In international law22 the following gradation in the mens rea is commonly used: a simple error of judgement; gross negligence; reckless attitude; and finally deliberate attitude. The concept of ‘serious negligence’ is unknown in international maritime law and the risk exists that the negligence be appreciated in light of its consequences and not in light of the mens rea. ‘The Directive is likely to increase significantly the finding of liability for pollution caused by ordinary negligence or lesser areas of judgment given that all pollution these days is considered serious.’23 The EU legislation on ship-source pollution likely introduces a link between the culpability of the defendant’s actions and the perceived gravity of the consequences. It is the perceived gravity of the consequences, i.e. the seriousness of the consequences, that will determine the existence of a law-breaking act or not. Legally speaking, however, there is still no clear criterion and the question remains of how to differentiate ‘serious negligence’ from ‘human negligence’ or from other forms of negligence, since no criteria is offered in the Directive. Is that true and are the distinctive criteria for ‘minor cases’ in the Framework Decision likely to offer clarification for the qualification of the consequences and hence for the determination of the culpability?
The Framework Decision makes a difference between ‘minor cases’ and other cases – but without categorizing the latter – and provides for additional criteria, such as the consequences on the environment or on life integrity (cf. Table 1). In opposition to the Directive, the constitutive elements provided for within the Framework Decision clearly refer to both intentional elements (mens rea) and their consequences. A combined reading of the intentional elements and consequences, together with the foreseen sanctions provide valuable clarifications. The same is true for both Directive and Framework Decision which are closely linked, i.e. one cannot be interpreted without the other.
From the reading scale offered by the Framework Decision, it appears that acts that do ‘not cause a deterioration to the water quality’ are to be considered as
22 In common language you may have the following gradation in the intent: (1) error of judgment; (2) ordinary negligence; (3) gross negligence; (4) reckless attitude; (5) acting recklessly and with the knowledge that the consequence will occur; and (6) with intent. The whole question is to know if ‘serious negligence’ is placed before (2) meaning negligence with serious consequences or after (3) meaning severe negligence.
23 F. Peermohamed, ‘The criminalisation lottery – could you be next?’, The 1st ICCM&S Conference, 17 February 2005, p. 13.
‘minor cases’24 and that the latter do not give rise to offences when committed by ‘serious negligence’ (Art. 4(2) of the Framework Decision) but give rise to infringement. It also appears that any act that creates ‘significant and widespread damage to water quality or to animal or vegetable species’ is to be considered as a ‘serious case’ and that the latter does give rise to criminal offences even when the law-breaking act is made by ‘serious negligence’ (Art. 4(7), 4(6) of the Framework Decision). It may accordingly be summed up that there is a direct link between the serious consequences for the environment and the qualification of the law-breaking act as a criminal offence (and not as an infringement): serious cases are considered by European law as criminal offences and ‘minor cases’ as administrative infringements. But nothing in the Framework Decision or the Directive allows us to conclude that the concept of ‘serious negligence’ is equivalent to cases of ordinary negligence where serious consequences to the environment occur.