At dawn on July 30 of the current year the motor tanker “Theresa Success” (shipowner – resident of Singapore Gloria Shipping Pte Ltd) was unloading palm olein near the berth No. 4 of Yuzhnyi Port. At 04:55 deck officer discovered spill of palm olein, which was followed by immediate suspension of unloading. After thorough examination they discovered spilled cargo on the deck and on the portside in the port water area.
Slick bars which have been preliminarily placed and raised at alarm of the port services, made it possible to cope with contamination. But the most interesting things began when ecological service started evaluating environmental damage. Opinions of Ukrainian inspectors and experts invited by the shipowner differed greatly. What is it all about: does it speak in favor of the state’s wish to replenish the budget in such a way (similar initiatives are not rare in ports of Ukraine) or in favor of shipowners’ wish to save on incidental expenses? This is the weak point of Ukraine – our legislation does not correspond to the common international practice on estimating environmental damages, and judicial authorities ignore shipowners’ arguments. For this reason those, responsible for spills have an excellent and rather fair argument to complain of arbitrary behavior on the part of Ukrainian ecological inspectors and courts, which finally results in scarring the international business off from our harbors. Experts insist on changing the approaches.
Slipped on oil For ecological inspectors oil transhipment in ports of Odessa region is a great cash cow. Cases of spilled cargo while unloading are not rare. Thus, in December 2011 contamination of water by palm olein from the m/v “Abdoul B” (flag of Cambodia) was discovered near the berth № 23 of the Odessa Commercial Sea Port. A month earlier palm olein spill was discovered in the water area of the Port Yuzhny. Then the Panamian vessel was recognized as a responsible party.
In 2008, the damage from spill of 20 tons of palm oil in the water area of Odessa port was estimated at one million dollars. Then the spill occurred as a result of break of the technological pressure pipe on the m/v “Taipan” (flag of Liberia).
In the case with Gloria Shipping the volume of spilled cargo was nearly 11.9 cubic meters, besides the damage allegedly caused to the environment by the shipowner was estimated as 3.1 million dollars. The shipowner was in a poor position. In the first place, according to the assessment made by his independent surveyor (FE "SGS Ukraine"), which held measurements, took samples and performed laboratory tests to determine the amount of pure substance (palm olein) in the collected mixture, volume of the spilled palm olein was about 3.3 metric tons (which, accordingly, requires a reduction of the payment amount to 947,000 dollars). In the second place, the state arrested the vessel, claiming compensation. According to the shipowner one day of detention of such tanker causes the damage in amount of about 50,000 dollars. Besides, ecological inspectors forced the shipowner to provide a guarantee of the Ukrainian (!) bank before releasing the vessel. In the third place, the port requires Gloria Shipping to pay for utilization of the collected mixture.
The state ecological inspectors refused from the shipowner’s offer to settle the dispute by paying out 947,000 US dollars. It should be recalled that according to the Budget Code of Ukraine, the funds collected for spill of palm olein should be rendered to the state and local budgets. In current difficult economic situation the local authorities are counting on them. In response, the shipowner involved the international leverages (Singapore and Tuvalu Embassies, incident analysis by the International Tanker Owners Pollution Federation (ITOPF) and was forced to defend his position in the court.
The Risoil Company confirmes the practice of Ukrainian ecological inspectors to assess the damage "by eye". Recently sunflower oil spill occurred on the territory of Illichivsk port while shipping executed by port workers. The latter also signed the oil spill act, but ecological inspectors set the claim to JV "Risoil Terminal" as an owner of the filling pipeline. "Our company is not an enemy to the environment, - the newspaper "Zerkalo Nedeli" quotes Merab Dolidze, the director of the JV "Risoil Terminal". – We’ve spent a lot of money so that our shall complex meet all the requirements of environmental legislation, and we are not against compensation of damages. But inspection did not even try to assess it, just counted in head and issued an invoice."
Ukrainian unique features International practice of assessment of environmental damage differs greatly from the one established in Ukraine. “Throughout the world such accidents are assessed basing on certain environmental damage and expenses related to liquidation of pollution consequences. In our case we have a fee set by resolution of the Cabinet of Ministers. For example, fee for 1 kg of spilled oil is 329 US dollars and for 1 kg of spilled palm oil is 286 US dollars. In fact it is a punitive approach”, - indicates Artyom Volkov, the Head of Maritime Law Practice of the Law Firm “ANK”.
For the purpose of bringing our legislation to the international practice, acts of the Ministry of Natural Resources that govern the determination of damage amount, must be changed. According to an expert, ecological inspectors shall accept guarantees from P&I clubs, and not only guarantees of domestic banks.
The case with Gloria Shipping is very demonstrative in this regard. The shipowner had to persuade his P&I club, which is a member of reputable International Group of P&I Clubs, to provide financial guarantees to one of the Finnish banks, which in its turn came to agreement with the Ukrainian financial institution. Arrangement of such complicated procedure took about a week, and the shipowner incurred additional losses due to detention” – A.Volkov indicates. Meanwhile, reliability of such clubs, according to the ratings of the world's leading rating agencies, is significantly higher than that of the Ukrainian banks.
The second significant moment, in opinion of ANK lawyer Artyom Volkov is the way of assessing the caused losses. “Ecological inspectors did not take any steps for instrumental analysis of composition of the mixture collected in the water area, they did not estimate the damage caused by oil spill. It is hardly surprising that when such analysis had been conducted by FE “SGS Ukraine” the figures turned out to be much less” – the lawyer says.
In ITOPF they specify that international practice of compensation for spill of hazardous and noxious substances depend on the type of the substance and its effect on nature, but by no means on abstract mathematical calculations. In fact MARPOL as well as other annexes and additions to it from the very beginning aimed at preventing or minimizing pollution from ships rather than grounding of appliance of the system of punitive measures by the state in case if such pollution occurred.
However, if international practice is applied in Ukraine, ecological inspectors will have to ground the volume of the damage inflicted by shipowners. In the context of spills of vegetable oils it is rather problematic. When penetrating into water oil may cause violation of oxygen regime of a basin only in case of large-scale spills and formation of skin. However, in recent times there were no similar cases in ports of Ukraine.