Pollution Prevention, Response and Compensation

Each year, around 2,400 million tonnes of crude oil and oil products is transported by tankers.⁴ Pollution by discharge of oil is the major marine pollution from vessels.⁵ In fact, major oil spills from tankers prompted many of the current IMO regulations regarding marine environmental protection. It has been claimed that “in recent years, the average number of oil spills above 700 tonnes has shrunk from over 25 in the 1970s to just 3.7 per year. Interestingly, the biggest reduction was observed from the 1970s to the 1980s, coinciding with the adoption and entry into force of … [MARPOL 73/78]”.⁶ Annex-I⁷ of the MARPOL 73/78 Convention deals with oil pollution from ships.⁸ Like other technical annexes, it is amended regularly, and it is therefore not possible to exhaustively discuss all the amendments and all the aspects of such a complex and technical annex. This part briefly highlights some important provisions of this Annex-I, particularly those which introduced innovative processes and techniques and institutionalised certain pre-existing practices.

First, oil discharge criteria—which were pre-existing from the OILPOL era—were incorporated through Regulation 34 of Annex-I. Under this regulation, oil discharge is allowed only if the following conditions are satisfied:

1. the tanker is not within a special area;

2. the tanker is more than 50 nautical miles from the nearest land;

3. the tanker is proceeding en route;

4. the instantaneous rate of discharge of oil content does not exceed 30 litres per nautical mile;

5. the total quantity of oil discharged into the sea does not exceed for tankers delivered on or before 31 December 1979, …1/15,000 of the total quantity of the particular cargo … and for tankers delivered after 31 December 1979, …1/30,000 of the total quantity of the particular cargo…; and

6. the tanker has in operation an oil discharge monitoring and control system and a slop tank arrangement ….⁹

Second, to reduce the amount of dirty bilge water discharged into the ocean, this Annex re-institutionalised the load on top (LOT ) system which had been developed by the oil industry in the 1960s. This system requires a vessel to transfer dirty ballast water into a special slop tank during ballast voyages. After some days the oil flows up, the clean water under the oil is pumped out and new cargo oil is loaded on top of the residue oil in the next voyage.¹⁰ For proper functioning of this process, Annex-I requires oil tankers to be equipped with oil-discharge monitoring and control systems.¹¹

Third are the changes related to segregated ballast tanks (SBT ). Under the current provision, the Annex makes it mandatory for all tankers of over 20 thousand Deadweight tonnage (DWT ) delivered after 1982 to have SBTs suitable to operate safely on ballast voyage without needing to carry ballast water in oil cargo tanks.¹² Moreover, it requires all newly built tankers to meet a range of stability damage requirements for survival of the oil cargo in collision incidents.¹³ The 1978 Protocol to the MARPOL 73/78 Convention, however, made two significant changes to combat oil pollution from vessels. The first was the requirement of SBT on all new tankers of 20,000 DWT or more. These tanks now have to be located in a way so that they can protect cargo tanks in incidents of collision.¹⁴

The second was the institutionalisation of the crude oil washing system (COW ) technique developed by the oil industries in the 1970s as an alternative to SBT by the oil industry. The COW system involves washing tanks with oil instead of water.¹⁵ The Annex utilised the COW on all new tankers of over 20,000 DWT.¹⁶

Regulation 37 of this Annex obligates each ship to carry on board a Shipboard Oil Pollution Emergency Plan (SOPEP ) approved by the Administration. This plan shall be prepared based on guidelines developed by IMO, which IMO has already done.¹⁷ SOPEPs shall include: the procedure to be followed to report an oil pollution incident; a list of contact authorities or persons in case of oil pollution incident; a detailed description of immediate action to reduce and control the discharge of oil after an incident; and a point of contact on the ship for coordinating with national and local authorities for combating the pollution.¹⁸

As discharge of oil may also occur during the transfer of oil between tanks, Annex-I of the MARPOL Convention was amended in 2009 to include a new chapter, Chap. 8.¹⁹ Applicable to oil tankers of 150 gross tonnage and above engaged in the transfer of oil cargo between oil tankers at sea (STS ) for operations conducted on or after 1 April 2012,²⁰ this new chapter obligates oil tankers conducting STS operations to carry on board a STS operations plan.²¹ Chapter 8 also requires oil tankers to give advance notification to the coastal State if there are any planned STS operations within the territorial sea and exclusive economic zone of that State.²²

Apart from tankers carrying oils, fuel oils of other ships may also be a source of oil pollution. In 2006, Annex-I was amended to include a new regulation, Regulation 12A. This new regulation obligates ships delivered on or after 1 August 2010, with the aggregate oil fuel capacity of 600 m³, to adhere to special requirements regarding protected location of the fuel tanks and performance standards for accidental oil fuel outflow.²³

While these abovementioned changes to Annex-I were undoubtedly important, the most significant was the phasing out of single-hull oil tankers and the introduction of double-hulled oil tankers. The USA unsuccessfully tried to incorporate double hull oil tankers in the 1973 Convention and the 1978 Protocol. However, the Exxon Valdez incident in 1989,²⁴ and the USA’s subsequent unilateral action in promulgating the Oil Pollution Act 1990 (OPA ), proved catalytic in influencing IMO to change its tack in this regard. The OPA requires, by the year 2015, double-hull for all USA-flagged tankers and all tankers which call to the US ports. In 1992, an amendment to the MARPOL Annex-I was adopted, requiring double-hull for all new tankers of 5,000 DWT. Existing tankers of 20,000 DWT and product carriers of 30,000 DWT built in the pre-MARPOL era must be fitted with double-hull not later than 25 years after their delivery. All tankers built in compliance with 1978 MARPOL protocol will be exempted from the double-hull requirement until they attain 30 years of age.²⁵

Intensity surrounding the double-hull issue resurfaced again in 1999 when the single-hulled oil tanker Erika spilled a huge amount of oil near the France coast. This time, IMO received a threat of unilateralism from the other side of the Atlantic which prompted the 2001 amendment of the MARPOL 73/78 Convention. This amendment requires that most single-hull tankers have to be phased-out by the year 2015 and all new tankers built since 1996 have to be fitted with double-hulls. All pre-MARPOL single-hull tankers of 20,000 GWT (Category-1) have to be phased out by 2007; while all post-MARPOL single-hull oil tankers of 20,000 GWT (Category-2) all single-hull oil tankers of above 5,000 GWT but below 20,000 GWT (Category-3) have to be phased-out by 2015.²⁶

2002 saw another incident occur when a Bahamas-flagged tanker, Prestige , spilled huge amounts of oil in coastal areas off Spain. Subsequently, the European Union successfully pressured IMO to accelerate the phasing-out of single-hull oil tankers. In 2003, an amendment to the MARPOL Annex-I was adopted requiring the phasing-out of ‘Category 1’ single hull tankers by 2005 and, ‘Category 2’ and ‘Category-3’ single hull tankers by 2010.²⁷ Table 3.1 outlines the revised dates for the phasing-out of single-hull oil tankers.

For proper implementation of these provisions, Annex-I introduced a system of certification, survey and monitoring. A ship or tanker has to carry certain certificates and records, including the International Oil Pollution Prevention Certificate and Oil Record Book .²⁸

Finally, the parties to the Convention undertake to ensure there are reception facilities for oily wastes in loading ports, ship repair yards and bunkering ports.²⁹ This obligation has been drafted in a way that may give the impression that providing reception facilities is not mandatory. However, another regulation in Annex-I dealing with reception facilities within special areas³⁰ removes any doubt that States are obliged to provide reception facilities.³¹

Annex-II³² of the Convention deals with the chemical wastes generated from noxious liquid substances (NLS ) carried in bulk. These NLS, if accidentally or intentionally discharged, will be seriously harmful for the marine environment.³³ The Annex elaborates on certain discharge standards and mechanisms for the control of pollution by NLS.³⁴ Discharging NLS is permissible only in designated reception facilities, and only if certain conditions are fulfilled.³⁵ This Annex introduced a system to control discharge which depends on certain thresholds, such as: distance from land; nature and concentration of effluent; and depth of the sea at the place of discharge. Discharge of NLS is totally prohibited within 12 miles of the nearest land.³⁶ The Annex also stipulates obligations for necessary reception facilities for NLS.³⁷ Ships are also required carry the International Pollution Prevention Certificate for Noxious Liquid Substances Carried in Bulk and Shipboard marine pollution emergency plan for Noxious Liquid Substances.³⁸

Annex-III³⁹ is dedicated to the prevention of pollution by harmful substances in packaged form. It defines “harmful substances” as “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 this Annex”.⁴⁰ The Annex elaborates on: common requirements and standards on packing⁴¹; marking and labelling⁴²; documentation⁴³; stowage⁴⁴; quantity limitations⁴⁵; and port State control on operational requirements for preventing pollution by harmful substances.⁴⁶ This Annex prohibits jettisoning of harmful substances, except where necessary for the purpose of securing the safety of the ship or saving life at sea.⁴⁷

Annex-IV of the Convention details the requirements for the prevention of pollution by sewage from ships. Applicable to ships of 400 gross tonnage and above or ships certified to carry more than 15 passengers,⁴⁸ this Annex requires vessels to have one of the following three systems: a sewage treatment plant; a sewage commuting and disinfecting system for the temporary storage of sewage when the ship is less than three nautical miles from the nearest land; or a holding tank.⁴⁹ The Annex also established a discharge standard which every ship must follow.⁵⁰

Annex-V deals with marine pollution by garbage from ships. This Annex generally prohibits the discharge of garbage into the sea, with some exceptions; it completely bans the dumping of all forms of plastic in the sea except under certain circumstances, such as necessity for security of the ship, saving life or the accidental loss of garbage resulting from damage to the ships.⁵¹

These Annexes also introduced a certification and survey system. Of these, the most important are: the International Swage Pollution Prevention Certificate; Garbage Management Plan; and Garbage Record Book. Additionally, they also obligate parties to the Convention to ensure there are reception facilities for different purposes, including: reception facilities for sewage in ports of some areas where the port state requires ships to follow discharge standard of the Annex⁵²; and reception facilities for garbage in all ports handling national and international trade.⁵³

IMO started working on shipping based air pollution in the late 1980s. In 1997, member States of IMO adopted a new annex, Annex-VI , to the MARPOL 73/78 Convention for the prevention of shipping based air pollution. This Annex entered into force on 19 May 2005.⁵⁴

Annex-VI of the MARPOL 73/78 Convention failed to satisfy many countries due to its less-stringent provisions. It imposes a global cap of 4.5 % sulphur in marine fuels.⁵⁵ Although the global average of sulphur level in marine fuels is significantly less than 4.5 % the agreement on a more stringent cap could not be achieved due to the pressure from the oil industry and oil exporting countries.⁵⁶ The European Union States declared that their ratification of this Annex will not limit their right to impose more stringent caps within the European Union waters.⁵⁷ Against this backdrop, the European Council and Parliament enacted a Directive in July 2005⁵⁸ which introduced a cap of 1 % sulphur content in heavy fuel oils within the territories of the member States.⁵⁹ This was clearly a much more stringent control than the original Annex-VI of the MARPOL 73/78 Convention. The Directive also introduced a cap of 0.1 % sulphur, by weight, for marine fuels used by inland waterway vessels and ships at berth in European ports.⁶⁰ The Directive clearly declared its goal to “reinforce Member States’ positions in IMO negotiations, in particular to promote, in the revision phase of Annex-VI to MARPOL , the consideration of more ambitious measures as regards tighter sulphur limits for heavy fuel oils used by ships”.⁶¹

Annex-VI of the MARPOL 73/78 Convention took 8 years to come into force. In that time, technology advanced significantly and to such an extent that, soon after the entry into force, MEPC decided to revise this Annex to control air pollution from all sources.⁶² 2008 saw MEPC 58 adopt an amendment of the Convention by including a revised Annex-VI.⁶³

The Annex imposes an emissions standard limit for Nitrogen Oxides (NOx),⁶⁴ Sulphur (SOx) contain in fuels.⁶⁵ According to the revised Annex, the subpar content in fuel use should not exceed 4.50 % m/m until 1 January 2012; 3.50 % m/m from 1 January 2012; and 0.50 % m/m from 1 January 2020.⁶⁶ The Annex-VI has a provision for declaring certain sea areas as ‘Emission Control Areas’ for the purpose of regulating sulphur. In those areas, sulphur content in fuel oil must not exceed 1.50 % m/m until 1 July 2010; 1.00 % m/m from 1 July 2010; and 0.10 % m/m from 1 January 2015.⁶⁷ Similarly, the Annex includes a provision for progressive reduction of emission of nitrogen oxides, introducing a more stringent emissions reduction target for emission control area designated under this Annex for the purpose of nitrogen oxides.⁶⁸

It also prescribes that tankers must be fitted with a vapour emission control system to reduce the emissions of volatile organic compounds (VOCs ). Crude oil-carrying tanker musts have on board and implement a VOC Management Plan .⁶⁹ The Annex prohibits deliberate emissions of ozone-depleting substances.⁷⁰ Shipboard incineration of certain substances, including polychlorinated biphenyls (PCBs ) is also prohibited.⁷¹ The revised Annex also includes elaborate provisions for fuel oil availability and quality.⁷² Like other annexes, this Annex-VI also includes a regulation for the reception for ozone-depleting substances and equipment containing such substances in repair ports and shipbreaking facilities.⁷³

This Annex was further amended in 2011 to address the issue of greenhouse gas emissions (GHGs ). This issue will be discussed later in Chap. 6.

Both the United Nations Convention on the Law of the Sea (UNCLOS ) and MARPOL 73/78 Conventions contain provisions establishing special areas for better protection of the marine environment. According to the UNCLOS, if the international rules and standards are inadequate to meet the special conditions of a certain area, coastal State(s) can declare defined areas of their respective EEZ s as a ‘special area’ and adopt special mandatory measures for the prevention of pollution from vessels after consultations with the competent international organisation.⁷⁴ This competent organisation is IMO.

The MARPOL 73/78 Convention established certain ‘special areas’ where special mandatory methods for the prevention of pollution are required.⁷⁵ It provided a superior degree of protection to these special areas. A number of ‘special areas’ have been designated under Annexes I, II, IV–VI.⁷⁶ Annex I of the MARPOL 73/78 Convention defines ‘special area’ as “a sea area where for recognized technical reasons in relation 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 oil is required”.⁷⁷ Annexes IV and V of the MARPOL 73/78 Convention define ‘special area’ in a similar way for the prevention of sea pollution by sewage and garbage.⁷⁸ In designating a special area, IMO has to consider three criteria: oceanographic conditions; ecological conditions; and vessel traffic characteristics.⁷⁹ Annex-I of the MARPOL 73/78 Convention prohibits the discharge of oil from ships above 400 gross tonnage in special areas, except certain special circumstances.⁸⁰ It also prohibits the discharge of oil and oily mixtures in the Antarctic area.⁸¹ Annex II of the Convention prohibits any discharge of NLS, or mixtures containing NLS , in the Antarctic area.⁸² Annex IV prohibits the discharge of sewage from a passenger ship in a special area⁸³; Although this can be exempted if the ship has a sewage treatment plant and there is no possibility of producing visible floating solids or causing discoloration of the surrounding by the effluent.⁸⁴ Annex V of the Convention permits the disposal of only certain types of garbage in special areas, and under very strict conditions.⁸⁵ Finally, Annex VI of the Convention severely restricts the emissions of SOx and NOx in the Emission Control Areas (Table 3.2).⁸⁶

The advantage of the Particularly Sensitive Sea Area (PSSA ) system is that it gives States room to take broader protective measures. PSSA has been defined as “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”.⁸⁷

In a PSSA, IMO may allow the coastal State(s) to use ship routing and reporting systems as associated protective measures. Moreover, coastal State(s) of a particular PSSA can propose to IMO for “development and adoption of other measures aimed at protecting specific sea areas against environmental damage from ships, provided that they have an identified legal basis”.⁸⁸

The system of PSSA and IMO PSSA Guidelines are now facing some critical legal debates. One example is the debate on the extension of the Great Barrier Reef Particularly Sensitive Sea Area to the Torres Strait.⁸⁹ After recognition of this area as a PSSA , Australia imposed a compulsory pilotage system in the Torres Strait which is a “strait used for international navigation”. The United States and Singapore seriously objected this action. Some scholars are of the view that the Australian system of compulsory pilotage in the Torres Strait violated the right to transit passage in the “strait used for international navigation” as provided by the UNCLOS .⁹⁰ Apart from the debate regarding one particular PSSA, there is a general debate regarding the legal basis of PSSAs. Although there is a trend of justifying PSSA using relevant provisions of UNCLOS, PSSA is in fact older than UNCLOS.⁹¹ Nevertheless, the PSSA concept has become an effective system for protection of the fragile and sensitive marine areas (Table 3.3).

The International Convention on Oil Pollution Preparedness, Response and Co-Operation (OPRC Convention)⁹² was adopted in 1990 for preparedness, response and co-operation on oil pollution. According to this Convention, State parties are required to establish measures for dealing with pollution incidents, either domestically or in co-operation with other countries.

The State parties to the OPRC Convention must develop a National Oil Pollution Contingency Plan (NOPCP) .⁹³ Moreover, they must require their ships to carry a Shipboard Oil Pollution Emergency Plan.⁹⁴ Offshore units operating within the jurisdiction of State parties must develop an Oil Pollution Emergency Plan which is coordinated with its NOPCP . Parties to this Convention must also ensure that sea ports or handling facilities within their jurisdiction are well equipped with a contingency plan and necessary facilities to implement the plan whenever needed.⁹⁵ In cases of pollution incidents, ships must report immediately to the coastal authority.⁹⁶ The parties to this Convention must also commit to help each other in an event of an oil pollution emergency.⁹⁷ In 2000, through the adoption of a Protocol,⁹⁸ the scope of the Convention was expanded to include hazardous noxious substances other than oil.

The need of a convention providing a right to the coastal States to intervene in the high seas in cases of oil pollution casualties arose for the first time after the Torrey Canyon disaster of 1967. To avoid serious pollution to the United Kingdom (UK) coast, the UK government ordered the wreck to be bombed to destroy any remaining oil by fire.⁹⁹ This action was contrary to the prevailing international law at that time, and subsequent debate led to the adoption of the Intervention Convention in 1969.¹⁰⁰ The Convention provides a right to the coastal State “to take such measures on the high seas as may be necessary to prevent, mitigate or eliminate danger to its coastline or related interests from pollution by oil or the threat thereof, following upon a maritime casualty”.¹⁰¹ The Convention confers a restricted right on coastal States which is subject to consultation with flag States, the owner of the ship and owner of the cargo.¹⁰² Moreover, coastal States must demonstrate there is a ‘grave necessity’ to intervene. Any unlawful intervention will be liable for compensation.¹⁰³ A Protocol,¹⁰⁴ adopted in 1973, enlarged the scope of this Convention to include substances other than oil.

A number of international conventions aim to establish a comprehensive legal framework for compensation for damage caused by marine pollution. Of these, the most important is Article 235 of the UNCLOS , which requires States to provide adequate compensation for “damage caused by pollution of the marine environment”¹⁰⁵