Introduction conditions. Pre-MARPOL, the International Convention for the

Introduction

The International Convention for
the Prevention of Pollution from Ships, also known as MARPOL is a convention
which was ratified with a specific aim to prohibit the increase of pollution within
the marine environment. The increase of pollution especially from ships and
vessels was a topic which created an awareness regarding oil spills and other
harmful materials which might damage the ecosystem and the species living
within it. The objective of MARPOL, is to minimize oil spillages, and maximize
the elimination of oil and substance pollution in the sea aiming to the marine
environment preservation.  

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Torrey Canyon
Incident

Throughout the years, the
transportation of oils and substances by way of ships was always growing in
demand which also led to certain vessel accidents due to various conditions.
Pre-MARPOL, the International Convention for the Prevention of Pollution of the
Sea by Oil (OILPOL) was dominant within the maritime sphere which mostly
regulated only the pollution by oil. Moreover, “OILPOL 1954 controlled
deliberate rather than accidental discharges of oil”1.
One of the most environmentally tragic event was the Torrey Canyon accident,
the SS Torrey Canyon was a tanker having a capacity to carry 120,000 tons of
crude oil. On her last voyage the tanker SS Torrey Canyon had a freight of
119,328 tons of crude oil2
with a planned destination from the Canary Islands to Milford Haven in Wales.
However, the voyage was unpredictable as the Torrey Canyon struck the Pollard’s
Rock on the 18 of March 1967 between the Cornish mainland and the Isles of
Scilly3.

The Torrey Canyon’s accident took
place due to a navigational error which led the vessel to have fractured tanks.
The tanker lost approximately 30,000 tons of crude oil which leaked from the
cracked tanks by the 20 of March. There has been a great effort to contain the
oil however, the oil spill was described as being “Britain’s biggest oil spill
at up to 117,000 tonnes4,
by which perhaps, “the cost of preventing and controlling an oil spill far
exceeded the value of the ship and her cargo”5.
Moreover, the legislative system with regards to such events was still
considered as a lacuna, which led to such case to be dealt with by the use of
tort law. The Torrey Canyon accident “set in motion the chain of events that
eventually led to the adoption of MARPOL.”6

 

MARPOL Explanation

In the Parties to the Convention section
of The International Convention for the Prevention of Pollution from Ships
(MARPOL), “BEING CONSCIOUS of the need to preserve the human environment in
general and the marine environment in particular, RECOGNIZING that deliberate,
negligent or accidental release of oil and other harmful substances from ships
constitutes a serious source of pollution, RECOGNIZING ALSO the importance of
the International Convention for the Prevention of Pollution of the Sea by Oil,
1954, as being the first multilateral instrument to be concluded with the prime
objective of protecting the environment, and appreciating the significant
contribution which that Convention has made in preserving the seas and coastal
environment from pollution, DESIRING to achieve the complete elimination of
intentional pollution of the marine environment by oil and other harmful
substances and the minimization of accidental discharge of such substances,
CONSIDERING that this object may best be achieved by establishing rules not
limited to oil pollution having a universal purport.”7

Moreover, MARPOL superseded and
followed The International Convention for the Prevention of Pollution of the
Sea by Oil (OILPOL) which was signed in London in 1954 however, a few ships
have followed the convention and “fell short of coming into force”8.
Similarly, to other conventions, MARPOL has had different occasions and dates
in which it has been adopted, brought into force and annexes included. The
International Convention for the Prevention of Pollution from Ships was adopted
on the 2 November 1973 at the International Maritime Organisation however, it
did not enter into force until 19839.
Between 1973 and 1983, the Protocol of 1978 relating to the International
Convention for the Prevention of Pollution from Ships, 1973, was adopted which
absorbed the parent Convention due to a number of tanker accidents in 1976 and
1977. The convention entered into force on the 2 October 1983 and a new Annex
was included which entered into force on the 19 May 2005. At the moment, the
signatories to the International Convention for the Prevention of Pollution
from Ships (MARPOL) are 153 countries and all the ships which bare the flag for
a contracting party to the convention must follow its rules and regulations10.

The main concern with regards to
the Protocol of 1978 was the number of tanker accidents which took place, one
of them being the Argo Merchant. The Argo Merchant was a small oil tanker
carrying 27,000 tons of oil which went aground 29 miles southeast of Nantucket
Island, Massachusetts in 1976, in this case he vessel broke in two spilling
most of its cargo in the sea11.
This accident caused a huge public concern as the prevailing currents carried
the oil spill threatening Georges Bank fishing ground and the New England
resorts. In this case the United states asked the International Maritime
Organisation to adopt additional regulations with regards to tanker safety in
which the Conference on Tanker Safety and Pollution Prevention took place12.

As the MARPOL Convention includes
regulations to prevent and minimise ship and vessel pollution, it encloses six
technical Annexes which regulate pollution cause by accidents and also
pollution caused by the daily running of ships. Most of the Annexes entered
into force on different dates due to the needs and incidents which took place
throughout the years from the date of entering into force of the Convention. Within
the Annexes, the convention lays down regulations and prevention methods to achieve
cleaner seas and regulate marine pollution.

MARPOL Annex I

The first Annex of the MARPOL
Convention regulates for the prevention of pollution by oil which came into
force on the 2 October 1983. In this annex the prevention of
pollution by oil is regulated from both operational and accidental issues,
therefore, it contains certain oil discharge criteria13.
The first half of Annex I focuses on engine room waste whilst the second half
deals more with the cargo areas and tank cleaning14.
However, Annex I undertook certain amendments due to an incident in which the
United States called for an amendment to the International Maritime
Organisation. The Exxon Valdez incident took pace in March 1989. The ship had a
cargo of roughly 53 million gallons of crude oil, the tanker left the Alyeska
Pipeline to cross Prince William Sound. The Exxon Valdez hit Bligh Reef in
which approximately 11 million gallons of crude oil were spilled as the
containment of such oil was insufficient and moreover, a storm took place and
the oil was widely spread leading to a large number of species perishing and a
destructive environmental issue. 15

The United States in this case
called for double hulls to be a mandatory prerequisite, as such after certain
debates and resistance, an amendment took place to Annex I in which “double
hulls or alternative designs” were made mandatory in the 1992 “double hull”
amendments.16

Moreover, in 1999 the Erika
accident further incited the amendments to MARPOL aiming to gradually dispose
of single-hull oil tankers. On the 11 December 1999 Erika, an oil tanker
registered in Malta was carrying cargo from Dunkirk to Leghorn. As a vessel, it
was not considered as a safe and modern tanker but rather a vessel which
reached the end of its shelf life.17
Whilst crossing the Bay of Biscay the Maltese registered tanker encountered a
heavy storm which led the vessel to list to starboard leading the tanker to
break in two leading to the draining of 30,000-ton heavy fuel oil in the sea.
The heavy storm in which the tanker was in led the heavy fuel oil to disperse
polluting a large part of Brittany’s coast affecting fishermen due to the
environmental damage caused.18
In regards to this case, the claims for compensation for this incident were of
approximately 400 million euros and moreover, the French Government initiated
criminal proceedings against Giuseppe Savarese of Tevere Shipping, the
charterer and other parties involved in the running of the vessel who were
furthermore fined for the lack of proper maintenance to the ship.19

 

 

 

MARPOL
Annex II – VI

“Annex II Regulations for the
Control of Pollution by Noxious Liquid Substances in Bulk”20
is the second Annex within MARPOL which entered into force on the 2 October
1983. The Annex outlines regulations, discharge criteria and measures to
control the pollution which takes place by toxic liquid elements carried in
bulk. This annex prohibits the discharge of toxic liquid substances in certain
areas and limits the discharge of approximately 250 substances which residues
may be discharged only according to the Annex II regulations. Moreover, “no
discharge of residues containing noxious substances is permitted within 12
nautical miles of the nearest land therefore, in territorial waters. Apart from
the latter restriction, Annex II is stricter regarding “special areas” which
are found listed within the Convention in which discharge residue may take
place, “Special area means a sea area where for recognized technical reasons in
relation to is oceanographic and ecological condition and to the particular
character of its traffic the adoption of special mandatory methods for the
prevention of sea pollution by noxious liquid substances is required”21.
These special areas are; the Baltic Sea area, Black Sea area and the Antarctic
area.

Annex III of MARPOL 73/378
regulates “for the Prevention of Pollution by Harmful Substances Carried by Sea
in Packaged Form”22.
The Annex includes rules and standards on the packaging of harmful substances
including the labelling, limited quantities, marking and certain exceptions.
Regulation 1 (1.1) states that “For the purpose of this Annex, ‘harmful
substances’ are those substances which are identified as marine pollutants in
the International Maritime Dangerous Good Code (IMDG Code)”23.
Moreover, harmful substances which are carried by sea need to be in accordance
to Annex III of MARPOL as to avoid any accidental damage, therefore, the
carrying by sea of harmful substances which are not in accordance to MARPOL are
strictly prohibited.

The objective of creating a
standard of harmful substances carriage is mostly to ensure the safety of human
lives, aviod sea contamination and to facilitate the safe movement of hazardous
goods. The IMDG Code separates dangerous good in 9 classes, some of them being;
explosives, flammable liquids, oxidizing substances, toxic and infectious
substances and radioactive material. 24

Due to MARPOL’s exhaustive list
one may find another three Annexes in which other preventive measures and
regulations are set out to cover most of the pollutions which my take place
from ships and vessels. In this case, Annex IV may be considered as one of the
most common act which took place on ships, Annex IV regulates the Prevention of
Pollution by Sewage from Ships which came into force on the 27th
September 2003. With regards to this matter, Annex IV prohibits the discharge
of sewage in the sea “except when the ship has in operation and an approved
sewage treatment plant or when the ship is discharging comminuted and
disinfected sewage using an approved system at a distance of more than three
nautical miles from the nearest land”25.
Moreover, Annex IV forbids the discharging of undisinfected sewage in
territorial waters.

Annex V entered into force on the
31 December 1988 which also deals with a prominent matter which is widely
spread, and which caused a lot of media speculation and Non-Profit
Organisations to report and deal with such problem. Annex V regulates the
prevention of pollution by garbage from ships. MARPOL, in relation to garbage
and waste, stipulates distances from land and disposal manner of differentiated
garbage. Moreover, one of the key factors of this Annex is that there is an
imposed prohibition on the disposal of all types of plastics in the sea due to
its difficulty to be broken down which leads to a lot of marine organisms to be
harmed or killed by such disposal26.

The most recent amendment to
MARPOL was the introduction of Annex VI which entered into force on the 19th
May 2005. This amendment took place due to the increased awareness on air
pollution and the effect of such pollution vis-à-vis climate change. Annex VI
prevents air pollution from ships, in this case MARPOL sets out standards and
limits of sulphur oxide and nitrogen oxide emissions from exhausts. Moreover, a
further amendment took place in 2011 in which certain technical requirements
were imposed as to reduce the emissions of greenhouse gasses emitted from ships
and vessels.

As one can notice, the International
Convention for the Prevention of Pollution from Ships(MARPOL) regulates and
ensures to diminish all the types of marine pollution and aim to achieve
cleaner seas. This can also be regarded in the extensive case law which relates
to the convention. An example of this is the case of; United States v. Accord
Ship Management PVT. Ltd./Nicanor Jumalo 3:07-CR-00390, 00398 in which the
workers on the tanker reported that some crew members acted in violation of
MARPOL Convention by duping oily waste directly into the sea. The defendant was
criminally charged and found guilty of such plea, moreover, the workers who
reported violations were rewarded for such actions. 27

UNCLOS and SOLAS

Albeit the Convention’s
exhaustive regulations regarding marine pollution covering all the forms of
pollution which may arise, there is no direct assessment on the safety and
freedom of navigation. The safety and freedom of navigation are mostly
regulated by The United Nations Convention on the Law of the Sea (UNCLOS) and
mostly by The International Convention for the Safety of Life at Sea
(SOLAS).  UNCLOS mostly regulates the
freedom of navigation as it was considered as “a constitution for the oceans”28,
UNCLOS mostly bases its regulations on the freedom of navigation as it mostly focuses
on the jurisdiction of coastal States and the regulations upon flag States.
Moreover, it envisages the different zones which a coastal state has according
to the distance calculated in nautical miles. 29

On the other hand, The
International Convention for the Safety of Life at Sea sets out the safety
standards of equipment, construction and operational measures on vessels.
Within its chapters, SOLAS includes the construction of a ship including
machinery, protection and regulations against fire hazards, life saving
equipment measures, radiocommunications and the general safety of navigations.30

Conclusion

Therefore, taking everything into
account, International Convention for the Prevention of Pollution from Ships(MARPOL)
is a highly successful international agreement to ensure that the marine
environment is protected as through its annexes, it ensures that marine
pollution and the aim of cleaner seas are achieved by covering vast types of
marine pollution which vessels might cause. The safety and freedom of
navigation are regulated by two other international conventions; The United
Nations Convention on the Law of the Sea (UNCLOS) and The International
Convention for the Safety of Life at Sea (SOLAS). These three conventions
including other international conventions ensure that the environment as well
as the safety of navigation.

 

1 ‘Liability
For Vessel-Source Oil Pollution: Is Directive 2009/123/EC Causing More Problems
Than It Sought To Solve?’ (Doctor of Laws (LLD), Faculty of Laws, University of
Malta May 2014).

2 Ibid.

3 ‘The
History Of MARPOL’ (Merchant Marine Academy Thesis, AEN Macedonia 2017).

4 Ibid.

5 ‘Liability
For Vessel-Source Oil Pollution: Is Directive 2009/123/EC Causing More Problems
Than It Sought To Solve?’ (Doctor of Laws (LLD), Faculty of Laws, University of
Malta May 2014).

6 ‘The
History Of MARPOL’ (Merchant Marine Academy Thesis, AEN Macedonia 2017).

7 International
Convention for the Prevention of Pollution from Ships 1973.

8 ‘Liability
For Vessel-Source Oil Pollution: Is Directive 2009/123/EC Causing More Problems
Than It Sought To Solve?’ (Doctor of Laws (LLD), Faculty of Laws, University of
Malta May 2014).

9 Ibid.

10 ‘The
History Of MARPOL’ (Merchant Marine Academy Thesis, AEN Macedonia 2017).

11 ‘Argo
Merchant | Incidentnews | NOAA’ (Incidentnews.noaa.gov)
accessed 5 January 2018.

12 ‘Contexte’
(Imo.org)

accessed 5 January 2018.

13 ‘International
Convention For The Prevention Of Pollution From Ships (MARPOL)’ (Imo.org)

accessed 5 January 2018.

14 International
Convention for the Prevention of Pollution from Ships 1973.

15 Alan
Taylor, ‘The Exxon Valdez Oil Spill: 25 Years Ago Today’ (The Atlantic, 2014)

accessed 6 January 2018.

16 ‘Contexte’
(Imo.org)

accessed 5 January 2018.

17 ‘BBC
News | CORRESPONDENT | The Scandal Of The Erika’ (News.bbc.co.uk, 2000)
accessed
6 January 2018.

18 ‘Liability
For Vessel-Source Oil Pollution: Is Directive 2009/123/EC Causing More Problems
Than It Sought To Solve?’ (Doctor of Laws (LLD), Faculty of Laws, University of
Malta May 2014).

19 Ibid.

20 ‘International
Convention For The Prevention Of Pollution From Ships (MARPOL)’ (Imo.org)

accessed 5 January 2018.

21 International
Convention for the Prevention of Pollution from Ships 1973.

22 Ibid.

23 Ibid.

24 ‘IMDG
Code’ (Imo.org)
accessed
6 January 2018.

25 ‘International
Convention For The Prevention Of Pollution From Ships (MARPOL)’ (Imo.org)

accessed 5 January 2018.

26 Ibid.

27 Mary
Wilmoth, ‘Cases Under The Act To Prevent Pollution From Ships’ (National
Whistleblower Center)

accessed 6 January 2018.

28 ‘Liability
For Vessel-Source Oil Pollution: Is Directive 2009/123/EC Causing More Problems
Than It Sought To Solve?’ (Doctor of Laws (LLD), Faculty of Laws, University of
Malta May 2014).

29
accessed 6 January 2018.

30 ‘International
Convention For The Safety Of Life At Sea (SOLAS), 1974’ (Imo.org)

accessed 6 January 2018