Shipping (MARPOL) (Jersey) Regulations 201-
Report
Introduction
These Regulations provide the framework for the States to ask the UK to extend ratification to the Island, of the International Convention for the Prevention of Pollution from Ships (the MARPOL Convention of 1973 and its associated Protocol of 1978, known simply as MARPOL 73/78).
Background
The Convention is considered by the International Maritime Organisation (IMO) as one of the three major maritime Conventions, the others being Safety of Life at Sea (SOLAS) and Standards of Training, Certification and Watchkeeping (STCW). Jersey has had the former ratified and it is hoped that work can begin on the latter in the next two years.
A total of one hundred and fifty-one countries have ratified the MARPOL Convention. The United Kingdom has also ratified it on behalf of Bermuda, the Cayman Islands, Falklands, Gibraltar and the Isle of Man.
The Convention has six discrete annexes covering potential pollution from (1) Oil, (2) Noxious Liquid Substances, (3) Harmful Substances in packaged form, (4) Sewage, (5) Ship’s Rubbish and (6) Air Pollution. However, only the first two, relating to oil and noxious liquid substances, are mandatory for the Island to be a party to the Convention. These Regulations thus deal with those annexes alone and allow the States to implement a staged and managed process. This approach, of opting for the most relevant or appropriate annexes first, has also been taken by many of the ratifying jurisdictions including the United Kingdom and those for which it has ratified the Convention.
The need for the Convention
Although the States have already put in place a sound legal structure for combating water pollution, such as the Water Pollution (Jersey) Law 2000 and other related legislation, this does not cover much of the very specific issues that relate to ships, such as design and construction of ships, segregation and filtering of oil on board, maintenance of oil record books, pumping arrangements, survey and certification. These matters are covered in depth in the MARPOL Convention but at present if a ship is found to be non-compliant in Jersey waters no enforcement action or prosecution could follow. One example of this is that the Island cannot enforce the ban on single-hull oil tankers and has to rely on the standards imposed by neighbouring States. Another example is the Convention requirement for ships to hold oil pollution emergency plans and Oil Record Books both of which should be available for inspection. At present the Island has no legal authority to carry out such inspections.
In the event of a suspected oil or chemical spill in Jersey waters, there are good anti-pollution provisions in the Water Pollution (Jersey) Law 2000 so that some action can be taken at present. However, using the MARPOL Convention experts in the field of ship design would have additional authority to look at additional matters, such as whether the ship had adequate subdivision and damage stability or whether its construction met the standards laid down in the International Bulk Chemical Code.
In the event of a suspected spill, failures in ship construction and equipment or inadequate ship certification, the Convention requires reports to be made to a ship’s national authorities.
Spillage by a non-Jersey ship that takes place outside Island waters can also constitute an offence if pollution results inside those waters. This is an important additional deterrent to careless ship owners and a useful protection for our environment.
Even where no spill has occurred, the Convention includes explicit powers to detain a ship in port. These include detention if there are clear grounds to believe that the Master or crew are not familiar with essential shipboard procedures designed to prevent pollution by oil.
The legislation also provides for Jersey ships worldwide and thus raises the standards beyond Jersey shores. Even with the current Jersey fleet of mostly pleasure craft the legislation will have a beneficial impact. One example of this is the requirement for ships under 400 tons regardless of whether they are commercial vessels or pleasure yachts only ever to discharge oil or oily mixtures en route and at a rate of not more than 15 parts per million. Alternatively ships will have to have effective on-board storage capacity and equipment so that they can discharge the oil ashore. Technically, Jersey ships entering the waters or ports of a Convention country already have to comply under that country’s legislation. However, they do not have to comply in a non-Convention country. These Regulations will enable Jersey to take action itself, to require these standards to be met even in international waters and where relevant to set a better example than merely rely on another jurisdiction’s enforcement standards.
The Regulations, Convention and Annexes
The Regulations aim to give effect in Jersey legislation to the Convention, its relevant Protocols and Annexes I and II. They do not attempt to reproduce each Article of the Convention or each Regulation of the Annexes. The wording in the annexes undergoes change from time to time as the international community refines the effectiveness of the Convention. This only occurs if there is a two-thirds majority in favour and individual Parties may still decline to accept an amendment. The most recent consolidated text was published in 2006 with a number of minor amendments agreed since then. For these reasons, with the exception of Protocol I (which is included as a schedule to the Regulations), the details of the Convention and Annexes are not contained in the Regulations. Members seeking specific details are invited to contact the Maritime Compliance section via shipsregistry@gov.je .
The Regulations will apply the Convention as in force on 1st August 2011. The effect and purpose of each Regulation is given by the Explanatory Note. However, some key points not covered elsewhere in this Report are as follows:
– Regulations 7 and 12 ensure that if an incident occurs, Jersey informs the ship’s Flag and, if sufficiently serious the IMO and that a proper investigation takes place;
– Regulation 8 makes sure that the duties and powers of inspectors are adequate;
– Regulations 10 and 11 put important reporting procedures in place;
– Regulation 13 creates the offences for breach of the Regulations and Annexes;
– Regulation 16 particularly will be of interest to owners of small ships. If less than 400 tons, the ships will either have to retain all oil on board to be disposed of in port or to be equipped to discharge at sea within the set limits of 15 parts per million and with equipment approved by the Minister. Advice will be given regarding this but it is expected that the majority of small pleasure craft will choose to retain waste oil and bilge oil on board until they can take it ashore safely;
– Regulation 19 ensures that where any special allowance, approval or exemption is authorised by the Minister this is properly published in written form. Where a general approval is given applicable to several ships a website notice may be used;
– Regulation 20 will ensure that an individual person could still be liable where an offence is committed by a business partnership or body corporate.
Consequential Ministerial Orders
There is an overlap and possible contradiction between the prohibition of discharges of oil in Article 98 of the Shipping (Jersey) Law 2002 and the prohibition and controls set out in Annex I of the Convention. A consequential Ministerial Order will follow that removes that contradiction so that Article 98 will not apply to certain allowed discharges. The Order will also ensure that fixed or floating platforms (such as an oil rig) will also be subject to the Convention as far as it is relevant.
Regulation 21 will authorise further changes that may be made from time to time by Ministerial Order so as to maintain the currency and effect of the Convention in force in Jersey.
Consultation
Discussions have taken place with officers at Planning and Environment as well as at Jersey Harbours. They are fully aware and supportive of this legislation.
Because of the intention to ratify an international Convention, the legislation has also been reviewed by the UK’s Maritime and Coastguard Agency for compliance with MARPOL and it has received approval from that quarter.
Enforcement
Jersey already has limited responsibility for Port State Control (known as PSC this is the practice of boarding and inspecting non-Jersey ships to assess compliance with maritime Conventions). There is an understanding with French and UK surveyors that allows them to carry out PSC here. Additionally, the legislation specifically recognises officers already designated under the Water Pollution (Jersey) Law. The introduction of MARPOL here in Jersey will allow these officers to enforce compliance if necessary.
Penalty Approval
Penalties are based on existing standards in relevant comparative legislation. The Attorney General has given his approval.
Financial and Manpower Implications
Because the enforcement regime is to be part of the existing arrangements, there are no new resource requirements for the States. Enforcement will be through the provision of information and reacting to known incidents rather than there being any plans to increase policing of vessels in Jersey waters.
When a ship is inspected locally for other routine reasons such as commercial certification of small craft or compliance with other Conventions for larger ships, MARPOL monitoring can be added to the check list. If actual evidence of pollution or the likelihood of pollution were apparent we would then react and involve the Environmental Protection team at the Environment Department. These functions can be managed within existing resources.
This approach has been discussed with the Treasury and Resources department which acknowledge there are no new resource requirements for the States.
Income from Fines
There may be some resultant income from fines if prosecutions take place following an infraction of the Regulations. However, it is not possible to make any accurate prediction of this as in the first place, the seriousness of any proven incident varies enormously and of course it is for the Attorney General to decide on whether or not to prosecute.
As a guide, typically maritime pollution fines have ranged from £5,000 to £30,000. Official website information[1] on the Bonn Agreement[2] cites fines in the UK averaging £20,000 for accidental operational spills with nine cases occurring over a period of two years. Locally, there have been twelve successful prosecutions under the Water Pollution (Jersey) Law with a range of fines, the maximum being £4,500. Really major disasters can result in far greater fines. For example, the major pilotage failure that resulted in the grounding of the Sea Empress off Milford Haven in 1996 led to a record fine of £4m.
Conclusion
It is important that Jersey is able to enforce all the major international maritime Conventions effectively in Island waters. It is also important that the Island continues to build a maritime legal framework fit for purpose for Jersey ships worldwide.
Accordingly, the Assembly is recommended to endorse these new Regulations and seek the ratification of the Convention by the UK on behalf of the Island.
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