Whether an illegal discharge is due to negligence (such as poor maintenance of equipment) or is deliberate (even actively promoted by the company), it is usually the result of action/inaction both on the part of ship operators, and of ship master and crew. On some occasions, violations of pollution regulations may result from lack of awareness by operators and crew. Deliberate illegal discharges occur due to a conjunction of two factors: 1) there are economic advantages for ship operators; 2) there is a low risk of being caught and penalised. Motivations for the individual crew members are slightly different; these are less likely to include cost savings, but may be based on an intention to follow perceived instructions (often implied rather than explicit) and/or fear of losing a job. The following information are an extract from EMSA’s “Addressing Illegal Discharges in the Marine Environment” publication.
There is considerable evidence, both anecdotal and from sources such as governmental, IMO and PSC MoU reports that illegal pollution is a widespread problem. With respect to oily waste, for example, for which there is more information available than other substances, an OECD report states that evidence from port State inspections reveal that nearly half of vessels inspected violate at least one aspect of the international environmental rules concerning the stowage and disposal of oil. While many transgressions are relatively minor, it is indicative that non-compliance with environmental law is common in the sector.
Incentives to pollute
For the ship operator, discharging illegally is advantageous for a number of reasons, but the main motivation is undoubtedly the potential cost savings that can be realised; vessels intentionally pollute in the expectation that this will bring economic benefits and give them advantages over more compliant competitors.
One estimate puts environmental compliance costs at approximately 3.5 to 6.5% of the daily operating costs of a vessel. When this is extended over a fleet of vessels, the savings can be substantial. Penalties of 18 million USD were paid by both the Royal Caribbean and Carnival Cruise Lines for cases of fleet-wide MARPOL violations, which represented 0.7% and 0.4% of operating revenues respectively for those companies in the year the fines were imposed.
For oily wastes, as for other types of ship-generated waste, cost savings from non-compliance can be accrued from two main areas, maintenance and training costs and waste disposal costs.
Maintenance and training costs
Ship maintenance and repair is costly. Some operators might neglect to properly maintain equipment such as pipes, pumps, and OWS, making the pollution prevention system ineffective. Training crew in proper use of anti-pollution equipment also involves costs.
Waste disposal costs
There are two possible costs associated with disposing of waste:
- The direct cost of using port reception facilities.
- A potential indirect cost if the ship has to stay for a length of time in port to use Port Reception Facilities.
Calculating the costs of disposing of waste in Port Reception Facilities is complicated given the vast range of vessel types, sizes, and ages, the length of voyage, and the wide variety of charges in different ports. In addition, the costs per gross tonne of waste delivered, and costs per type of waste, may vary considerably.
In the European Union, fees for waste are regulated by Directive 2000/59/EC on port reception facilities for ship-generated waste and cargo residues. However, the Directive leaves considerable scope for variation in the transposition to national law. Ports should implement cost recovery systems which promote the use of port reception facilities whilst ensuring that ships contribute significantly towards the costs (at least 30%). There is often an indirect fee for ship generated waste included in the port fee, although this very rarely covers the full costs.
There are a wide variety of systems in place: the indirect fee might only cover a contribution to operation of reception facilities, with a direct fee payment for all waste delivered; it might cover waste delivered up to certain limits, with additional payments for waste in excess of the threshold; there may be a high deposit, with the option to reclaim part of it if port reception facilities are not used, etc. For incompliant vessels, there is still a considerable financial incentive not to deliver ship-generated waste in port.
An additional determinant element in the economic decision not to use port reception facilities is the additional time that a ship may have to stay in port to comply with waste disposal regulations. Interruption of commercial activities is costly for the ship operators. A vessel may have to wait a period of time before it is possible to discharge waste, depending on the availability of Port Reception Facilities, and the queuing system in place. In some ports, discharging at a port reception facility might also require a shift in berth, generating even more costs (use of tugs, linesmen, pilot, etc.). Shortage of staff available to undertake the task following proper procedures could also be an issue; the period in port is usually very busy, and there may not be staff available to undertake waste disposal operations unless the vessel stays longer in port for specifically this purpose.
Finally, the wide range of different systems in place requires that the ship operator, master and/or crew are proactive in selecting appropriate port reception facilities. As a minimum, they need to determine what types of waste can be offloaded, what volume of waste will be accepted, and what arrangements need to be made (which, if different types of waste are involved, may also require different procedures). This administrative and logistical burden can also be a deterrent to effective waste disposal, making illegal disposal seem not only a cheaper, but also an ‘easier’ option.
In the Guide to Good Practice for Port Reception Facility Providers and Users (IMO. 2013. MEPC.1/Circ. 671/Rev.1), it is stated that shipping contracts (charter party agreements) between ship operators and cargo owners should take into account any logistical and commercial considerations (time in port, disposal costs) related to discharging MARPOL wastes ashore. It is noted that ‘such considerations are especially important when cargo tank pre-washes are required for certain annex II residues, and when charter agreements specify tank or cargo hold cleaning.’ However, many charter agreements do not include these considerations, putting increased pressure on masters and operators to perform activities in short timeframes and with reduced costs.
Consequences of violation
In order to address the problem of illegal discharges, existing legislation should be enforced in a harmonised manner. Those responsible for discharging, whether at the level of operator or crew, will only risk acting illegally if the consequences are perceived as being low or non-existent. At company level, the main factors which are likely to be taken into account are the possibility of being caught and sanctioned, the type and level of penalty, and the resulting negative publicity. The reputation of the company is an important factor. At an individual level, many of these factors are also relevant for the crew members involved.
Likelihood of being caught
When discharging at sea, the risk of being caught is often lower further from the coast, than in coastal areas where surveillance by a variety of methods is usually more intensive. However monitoring efforts are not always sufficient in all areas to deter polluters.
Information from vessel tracking and waste reporting systems is also not sufficient to enable law enforcement authorities to determine whether waste is being disposed of legally. The range of systems in place in different ports makes checking Port Waste Facility receipts (where they exist) against Record Books extremely difficult.
Port State Control Inspectors have limited time to carry out inspections which cover a wide range of aspects. Verifications related to pollution prevention are often limited to a formal examination of the ship’s records.
The development of satellite monitoring systems like CleanSeaNet has increased the likelihood that illegal discharges from vessels are detected. However, successful enforcement actions will always require timely follow-up action on-site and/or in port.
Type of penalty/Level of fine
Each case should be considered on its own merits in terms of what penalty should be meted by the court. Given the variety of legal systems in place, the defendant may be a natural person or may be a legal person (company), or both, and the penalty will reflect that. Penalties may include monetary fines, imprisonment, or other sanctions such as banning crew members from working in a particular State’s waters.
Financial penalties are frequently not set high enough to dissuade vessels from polluting. The aim of Directive 2009/123/EC was to strengthen the criminal law framework provided under Directive 2005/35/EC on ship source pollution and on the introduction of penalties for infringements. It widens the scope of that Directive by obliging Member States to introduce effective, proportionate and dissuasive sanctions for specific criminal offences related to ship-source pollution. In addition to the penalty itself, States should consider the possibility of recovering costs, including investigative and legal costs.
A study on the transposition of the Directive into national law in the Member States found that minimum fines for legal persons often ranging from about 15,000 EUR (and considerably less for physical persons). The analysis and evaluation of deficiency reports and mandatory reports under MARPOL for 2011 showed that globally the average fine imposed by port States for illegal discharge violations was just 5,220 EUR [£4,491] (min. 93 EUR [£80]; max. 678,940 EUR [£583,578]), and by flag States was even lower at an average of 2,680 EUR [£2,297] (min. 46.50 EUR [£40]; max. 21,090 EUR [£18,127]). As the absolute number of reported fines is low (171 by port States and 211 by flag States respectively), it is also likely that the few very high fines imposed distort the average.
Protection and Indemnity (P&I) Clubs are mutual insurance associations, covering liabilities of over 90% the world’s oceangoing tonnage, including liabilities arising from pollution. P&I Clubs may cover fines arising from accidental pollution, but will not cover costs arising from deliberate or operational discharges. Even in cases when the P&I Club may pay a bond for a vessel while a case is being decided, it will require reimbursement if the vessel’s action is found to have been in violation of anti-pollution regulations.
Source: EMSA
Officer of the Watch 
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