Prevention of Vessel-Source Pollution

• Author: Edgar Gold; Aldo Chircop; Hugh M. Kindred; William Moreira
• Pages: 864-931

864

CHA PTER 2 0

PREVENTION OF

VESSEL‑SOURCE

POLLUTION

A. INTRODUC TION

Under international law, pollution1 from ships is generally of two types:

operational and non-operational pollution. Operational pollution2 is

exactly that, pollution that emanates from the operation of the vessel

itself and can include regulated, controlled discharges of oily mixtures,3

seepage from propeller shafts,4 anti-fouling paints that slowly strip away

1 Marine pollution is def‌ined as “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, includ-

ing f‌ishing and other legitimate uses of the sea, impairment of quality for use of

sea water and reduction of amenities . . . .” United Nations Convention on the Law

of the Sea, 10 December 1982, 1833 UNTS 3, art 1(4) [UNCLOS].

2 International Convention for the Prevention of Pollution by Ships, 1973, 2 November

1973, 1340 UNTS 184 [MARPOL 73] as amended by Protocol of 1978 Relating to

the International Convention for the Prevention of Pollution from Ships of 1973, 17

February 1978, 1340 UNTS 61, Preamble [MARPOL]. MARPOL has been amend-

ed extensively since adoption; citations in this chapter to MARPOL are to the

consolidated text of the convention, including any protocols (unless specif‌ically

noted otherwise) and all amendments in effect.

3 MARPOL, above note 2, Annex I, reg 9. See also Vessel Pollution and Dangerous

Chemicals Regulations, SOR/2012-69, ss 28–31 [VPDCR].

4 VPDCR, ibid, s 5(c). According to Alla Pozdnakova, MARPOL distinguishes be-

tween operational and accidental pollution, both of which can include discharges

caused by either intention or negligence “at least in principle.” Criminal Juris-

Prevention of Vessel-S ource Pollution 865

from the hull of the ship, and so on. Non-operational pollution can be

caused by accident (examples include the sinking of the Torrey Canyon

in 1967 and the Amoco Cadiz in 1978), can be deliberate (e.g., illegal

disposal of oily bilge water) or can result from negligent conduct (e.g.,

failure to properly maintain pollution control equipment).5

International efforts aimed at the regulation of both types of pollution

began in earnest in the mid-1950s. But for many years, those efforts were

reactionary in nature. It is well known that the aforementioned dramatic

marine casualties were the impetus for a stronger international regulatory

regime for accidental marine pollution6 that served to give coastal states

a more robust means of protecting themselves and access to compensa-

tion. Operational pollution regulation, while perhaps less haphazard in

development, has slowly embraced a wider def‌inition of “marine pollu-

tion” and has become more comprehensive in nature. International law

now recognizes that the list of potential pollutants from either operation-

al or non-operational pollution is as diverse as the ships and the cargos

themselves and shipping is one of the most heavily regulated industries in

the world. It is a regulatory scheme that relies upon not just one person

or party for effective regulation, but on a cohesive and consistent applica-

tion of minimum standards by a variety of entities.

Marine pollution is derived mainly from land-based sources,7 but

the perception remains that more needs to be done to control pollution

from ships.8 The reality is that certain segments of the shipping indus-

try appear to have achieved success in reducing ship-source pollution.

For example, the International Tanker Owners Pollution Federation re-

ports that the volume of oil shipped by sea has increased nearly every

year while, at the same time, oil pollution incidents have decreased

dramatically.9 On the other hand, the non-tanker segment continues

diction Over Perpetrators of Ship-Source Pollution (Leiden, Boston: Nijhoff, 2012)

at 45. UNCLOS, above note 1, is more explicit concerning fault. See art 230(2),

“wilful and serious” acts of pollution.

5 See MARPOL, above note 2, Preamble, which states that “deliberate, negligent or

accidental release of oil and other harmful substances from ships constitutes a

serious source of pollution.”

6 Group of Experts on the Scientif‌ic Aspects of Marine Pollution (GESAMP), The State

of the Marine Environment, Reports and Studies No 39 (London: IMO, 1990) at 88.

7 Ibid. See also National Research Council, Oil in the Sea III: Inputs, Fates and Effects

(Washington, DC: National Academies Press, 2003) ch 3 at 86 [NRC]. See also

UNCLOS, above note 1, art 213.

8 Edgar Gold, Gard Handbook on Protection of the Marine Environment, 3d ed (Aren-

dal, NO: Gard AS, 2006) at 676–77.

9 International Tanker Owners Pollution Federation (ITOPF), Oil Tanker Spill Statis-

tics, 2013, online: ITOPF www.itopf.com/f‌ileadmin/data/Documents/Company_Lit/

OilSpillstats_2013.pdf. See also NRC, above note 7 at 83 and 88.

PART VI: COLLISIONS, POLLUTION, AND LI ABILITY866

to struggle with compliance, particularly as it relates to bilge oil from

machinery spaces and fuel oil sludge.10 Assessing the eff‌icacy of inter-

national and domestic regulatory efforts is further challenged because

not all ship-source pollution is reported; this is particularly true for il-

legal pollution.11

What seems clear is that, in general, there has been continuous

improvement in maritime safety and pollution control12 over the past

few decades. Nonetheless vessel-source oil pollution remains problem-

atic, particularly in cases of large spills or where illegal pollution occurs

in sensitive or high-traff‌ic areas.13 In Canada, for example, oil pollution

along the southern coast of Newfoundland is believed to be among the

highest in the world.14 It is estimated that the deaths of some 300,000

migratory birds each year are directly attributable to illegal oil pollution

in this area.15 Many countries16 have responded to this pollution prob-

10 NRC, above note 7 at 83. See also Declaration of the UN Conference on Environ-

ment and Development, 14 June 1992, UN Doc A/CONF151/26/Rev 1, Report of the

UNCED, Vol II (New York) at para 17, 20 [UNCED]; GESAMP, Estimates of Oil

Entering the Marine Environment from Sea-based Activities, Reports and Studies No

75 (London: IMO, 2007).

11 NRC, above note 7 at 88.

12 Gold, above note 8 at 407.

13 GESAMP, above note 10, especially Part 6. See also NRC, above note 7 at 88: “Esti-

mated operational discharges of bilge oil and sludge from vessels remain very sig-

nif‌icant inputs. Over 99 percent of the volume of operational discharges are related

to estimates of non-compliance, as existing regulations restrict operational dischar-

ges of oil or limited them to not more than 15 ppm. The extent of non-compliance

is diff‌icult to assess, and therefore these estimates have a high level of uncertainty.”

14 Francis Wiese, Seabirds and Atlantic Canada’s Ship-Source Oil Pollution (Toronto:

World Wildlife Fund, 2002) at 34.

15 Environment Canada, “Birds Oiled at Sea” (14 June 2011), online: Environment

and Climate Change (ECCC) Canada www.ec.gc.ca/mbc-com/default.asp?lang=

En&n=C6E52970-1. For example, Canada’s National Aerial Surveillance Program

reports that there were some 215 “mystery spills” — spills not connected to or

associated with a particular source — in the Atlantic Region (Nova Scotia and

Newfoundland and Labrador) during the period of 2004–2010. National Aerial

Surveillance Program (NASP), Statistical Report, 2004/2005 to 2009/2010 (Ottawa:

Transport Canada) at 14–16.

16 Colin de la Rue & Charles Anderson, Shipping and the Environment, 2d ed (Lon-

don: Informa, 2009) at 1066, where the authors note, for example, that in the

wake of the Erika and Prestige oil spills, the law and practice in France “shifted

towards greater readiness to f‌ind violations established on the basis of contested

aerial observations and photography and to impose signif‌icantly greater pen-

alties.” Also, see the discussion below at footnotes 166 & 167 — Spain, France,

Portugal, and Italy unilaterally banned single-hulled tankers from their ports and

internal waters (and escorted any such tankers from their EEZs) following the

sinking of the Prestige in November 2002.