Enforcement Branch
Bay 1/05
Spring Place
105 Commercial Road
Southampton
SO15 1EG
| To all addressees on attached consultation list | Tel: Your ref: August 2008 | +44 (0)23 8032 9100
|
Dear Consultee
CONSULTATION ON THE IMPLEMENTATION OF DIRECTIVE 2005/35/EC ON SHIP SOURCE POLLUTION AND ON THE INTRODUCTION OF PENALTIES FOR INFRINGEMENT
1. This consultation letter seeks views on the Maritime and Coastguard Agency’s (MCA) proposals for the transposition of Directive 2005/35/EC into UK law through Statutory Instrument.
2. This will involve the amendment of existing UK primary and secondary legislation. The European legislation does not replace the UK legislation. The European legislation is specifically targeted at only a subset of ship–source polluting discharges – i.e. those which are committed “with intent, recklessly or by serious negligence”.
3. This Directive reflects the European Commission’s desire to encourage consistent implementation and enforcement of the International Convention for the Prevention of Pollution from Ships 1973, as modified by the Protocol of 1978 relating hereto (MARPOL).
4. The Commission also wanted to address the issue that while it was possible to prosecute deliberate spills (which are normally small) under MARPOL, the very big spills – such as the “Erika” and the “Prestige” – were not open to prosecution under national laws derived from MARPOL because of MARPOL’s explicit exceptions in respect of discharges resulting from damage to the ship.
5. The existing UK legislation which will be amended is:
- Merchant Shipping Act 1995
- Merchant Shipping (Prevention of Oil Pollution) Regulations 1996, and
- Merchant Shipping (Dangerous or Noxious Liquid Substances in Bulk) Regulations 1996.
6. Both sets of Regulations have already been amended since 1996, through subsequent Statutory Instruments (references to which can be found in relevant footnotes in the draft Regulations).
Consultation Package
7. Enclosed with this letter is a consultation package containing:
- Annex A Directive 2005/35/EC (“the Directive”) (
PDF Document 216kB) - Annex B Draft Merchant Shipping (Implementation of Ship-Source Pollution Directive) Regulations 2008 (“the draft Regulations”)
- Annex C Draft Partial Impact Assessment ( PDF Document 37kB)
- Annex D Code of Practice on Consultation
- Annex E List of Consultees
- Annex F Draft Transposition Note
- Annex G Consultation Feedback Form (
Word Document 79kB)
Summary
8. The Commission took a conscious decision to limit the scope of the Directive to the substances covered in MARPOL’s Annex I (oil) and Annex II (noxious liquid substances (NLS) in bulk). During discussions in the Shipping Working Group, the Commission resisted suggestions that ships’ garbage should also be brought within the scope of the legislation, explaining that they were seeking to target pollution on a significant scale – as exemplified by oil pollution incidents and (potentially) pollution incidents involving NLS carried in bulk.
9. The draft Regulations are drafted to implement the Directive, in accordance with the UK’s obligations under European law. In particular, they are designed to amend and reduce the applicability of the pollution provisions in section 131 of the Merchant Shipping Act 1995 and simultaneously increase the applicability and enforcement of the pollution provisions in the Prevention of Oil Pollution Regulations 1996 to encompass pollution that has been excluded from the 1995 Act.
10. The draft Regulations will only bring about a change affecting those responsible for a ship-source polluting incident committed “with intent, recklessly or by serious negligence”. There will be no significant changes for the vast majority of seafarers who are not responsible for such ship-source polluting incidents.
Detailed summary of the draft Regulations
11. Principally the impacts of the Directive are reflected in amendments proposed in the draft Regulations to the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996 (“the PoOP Regulations”). These changes amend existing provisions in Part 3 of the PoOP Regulations concerning the discharge of oil or oily mixture resulting in damage to a ship or its equipment.
12. The existing provisions provide a duty not to discharge oil or oily mixture into any part of the sea, except in the specified circumstances allowed for by MARPOL. e.g. The ship is proceeding on a voyage, is not within a special area, the oil content does not exceed 15ppm, etc. There are also circumstances where these requirements do not apply such as securing the safety of the ship or saving life as well as discharges which result from damage to the ship.
13. The draft Regulations make changes to the defences available in respect of ships currently subject to regulation 11 of the PoOP Regulations (general exceptions). The changes are as follows:
- A distinction is drawn between ships which are “excepted ships” and ships which are not “excepted ships”. This term is defined in regulation 11C, and essentially distinguishes ships to which the Directive applies (“excepted ships”) from other ships.
- A further distinction is drawn between “European excepted ships” and “non-European excepted ships”. Again defined in regulation 11C, this distinguishes excepted ships which are registered in a EEA State (including the UK) from ships registered elsewhere.
- For ships which are not “excepted ships”, regulation 11 of the PoOP Regulations continues to apply. There is no change to the position under the PoOP Regulations for these ships because the Directive does not apply to them.
- For ships which are “excepted ships”, regulation 11A applies insofar as the discharge in question takes place into a part of the sea which is within UK internal or territorial waters. Article 4 of the Directive requires that it be an offence if relevant discharges are committed with intent, recklessly or by serious negligence. Accordingly, regulation 11A(a) provides that a defence is only available if the damage to the ship causing the discharge is not caused by someone acting with intent, recklessness or serious negligence. Regulation 11A(b) and (c) contain provisions equivalent to regulation 11(b)(i) and (ii), reflecting the requirements of MARPOL in addition to the requirements of the Directive.
- For ships which are “European excepted ships”, regulation 11B(1) applies insofar as the discharge in question takes place into a part of the sea which is not within UK internal or territorial waters. Regulation 11B(1) repeats provisions in 11A(1), which as explained above reflects the requirements of Article 4 of the Directive and the MARPOL requirements. The insertion of new regulation 36A(3) (by regulation 4(14)) is connected with this. It is added to reflect the requirement in Article 5(2) of the Directive that in certain specified circumstances, a discharge of polluting substances which would otherwise to be an offence shall not be regarded as an infringement by the owner, the master or the crew when acting under the master’s responsibility.
- For ships which are “non-European excepted ships”, regulation 11B(2) applies insofar as the discharge in question takes place into a part of the sea which is not within UK internal or territorial waters. Regulation 11B(2) contains only the requirements of MARPOL. This reflects that fact that while such ships are within the scope of the Directive where the discharge is into the sea within the internal and territorial waters of the UK (as a Member State), where the discharge is outside such waters the Directive does not apply to them.
14. The draft Regulations also provide relevant Harbour Masters with power to detain a ship in relation to a discharge in contravention of regulations 12, 13 or 16 of the PoOP Regulations. This is exercisable in circumstances where the Secretary of State already has powers of detention under the PoOP Regulations. This change is not specifically required by the Directive, but is considered to be an appropriate provision having regard to the UK’s duty under Article 8 to provide for effective, proportionate and dissuasive penalties as means of enforcing the requirements in Article 4 of the Directive.
15. While regulation 36(2)1 Regulation 4(14) of the draft Regulations relocates this provision within the PoOP Regulations to new regulation 36A(1). of the PoOP Regulations already provides that a breach of regulation 12, 13 or 16 will constitute an offence by the owner and the master of a ship, the draft Regulations insert a new regulation 36A(2) so as to provide that any person who causes or contributes to a discharge of oil or oily mixture in breach of regulations 12, 13 or 16 shall be guilty of an offence. The penalty for the new offence is the same as for the existing offence - it is punishable on summary conviction by a fine not exceeding £250,000 and on conviction on indictment by a fine. This reflects Article 4 of the Directive, which is not restricted in its application to owners and masters of ships.
16. The draft Regulations similarly amend the Merchant Shipping (Dangerous or Noxious Liquid Substances in Bulk) Regulations 1996. In addition to the existing provision whereby an owner and a master of a ship are liable for a breach of regulation 5 of those regulations, regulation 14(1ZA) is inserted to provide that any person is potentially liable for causing or contributing to a discharge which breaches regulation 5(a). Regulation 5(a) provides that “the discharge of any noxious liquid substance into the sea is prohibited, except where permitted by Schedule 2 in Merchant Shipping Notice No NLS 1”. Again, this change reflects Article 4 of the Directive, which is not restricted in its application to owners and masters of ships.
17. The amendments to section 131 of the Merchant Shipping Act 1995 contained in regulation 3 of the draft Regulations exist to tidy the relationship between that section and the PoOP Regulations for ships which are subject to the Directive. In order to ensure that discharges into the sea fall to be dealt with under the PoOP Regulations rather than section 131, “relevant discharge” is defined in relation to such ships as being a discharge into UK national waters which are navigable by seagoing ships but which are not sea. It should be noted that a different definition applies to “relevant discharge” in relation to offshore installations as they are not subject to the Directive. In relation to offshore installations, section 131 shall continue to apply as at present.
18. There are corresponding changes to the PoOP Regulations. Regulation 4(7) and (8) amend regulations 12(6) and (7) of the PoOP Regulations so as to provide that regulation 12 would apply to discharges into parts of the sea within UK territorial waters, other than discharges from offshore installations (to which the Directive does not apply). Regulation 4(9) makes similar amendment to regulation 13 of the PoOP Regulations.
Consultation
19. Consultees are invited to give their views on the draft Regulations as a means of transposing the requirements of the Directive into UK law. The Government is under an obligation to implement the Directive and so, while more general observations can be made, we would ask that consultees focus on the following when preparing their responses:
- Do the draft Regulations implement the requirements of the Directive?
- Could the draft Regulations be improved, while still implementing the requirements of the Directive?
20. The MCA would in particular be grateful for consultees’ views on the following question:
- At Article 4(5), the draft Regulations insert a new Regulation 11C(d) into the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996 to provide a definition of “serious negligence”, a term used in the Directive. The definition is taken from the European Court of Justice’s decision in the Intertanko case.2 . Do you consider it helpful to include this definition in the Regulations, or is it unnecessary?
Draft Impact Assessment
21. The draft Impact Assessment has assumed the implementation costs for industry and Government. It is considered that there will be no additional cost to Industry by the introduction of these regulations provided that they do not pollute, however if they should pollute then they may become criminally liable.
22. Full details of the draft Impact Assessment may be found at Annex C of this Consultation.
23. Please could you carefully consider the content and costing in the Draft Impact Assessment and inform us of any costs or benefits which we may have been overlooked.
Invitation to Comment
24. Your views on the proposals are invited. Any comments may be provided by post, fax or e-mail and should arrive within the consultation period, ending 21st November 2008, addressed to:-
Capt Jeremy Smart
Head of Enforcement Unit
Maritime and Coastguard Agency
Bay 1/05
Spring Place
105 Commercial Road
Southampton
SO15 1EG
Tel: 023 8032 9218
Fax: 023 8032 9232
E-mail: Jeremy.smart@mcga.gov.uk
25. Also enclosed is a list of the consultees to whom the package has been sent and, to assist full consultation, the package will be accessible on the MCA web-site at www.mcga.gov.uk in the Guidance and Regulations section.
26. After the consultation period has ended, time will be required for the analysis and presentation of the results. The consultation comments and MCA responses will then be published on the MCA website, in the ‘Closed Consultations’ section:
27. Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 1998 (DPA) and the Environmental Information Regulations 2004).
28. If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory code of practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the department.
29. The department will process your personal data in accordance with DPA and in the majority of circumstances; this will mean that your personal data will not be disclosed to third parties.
Yours faithfully
Capt Jeremy Smart
Head of Enforcement Unit
1 Regulation 4(14) of the draft Regulations relocates this provision within the PoOP Regulations to new regulation 36A(1).
2. Case C-308/06. Paragraph 77 of the judgment dated 3 June 2008.