Artyom Volkov: Prevention of Sea Pollution or Ecological Terrorism?

Artyom Volkov 22 June 2018 12:38

During latest two months we have noticed increased number of cases of vessel’s detention by ecological inspectors due to “facts of pollution of internal sea waters” while vessel’s cargo handling operations near the berth. “Sea defenders” act under familiar scheme: attendance the vessel – inspection report – request letter on vessel’s detention in the name of the harbor master.

In this regard we would like to remind the shipowners and the marine agents, as well as the harbor masters legislation requirements and few simple rules in communication with defenders of the environment, which would allow to avoid losses caused by vessel’s idle time.

Maritime Claims vs. Decisions of Authorized Authorities

It should be noted that under the general rule (articles 80, 91 of the Merchant Shipping Code of Ukraine), a vessel can be detained by the harbor master, which is fixed through the resolution of the harbor master. Along with that, the law separates the cases of vessel’s detention by the harbor master for securing of a maritime claims (art. 80 of the Code) and vessel’s detention on another grounds (art. 91 of the Code).

Vessel’s Detention by Harbor Master based on a Maritime Claim

Claims related to the pollution of the environment are considered as maritime claims, and, therefore, could be the legal ground for detention of a vessel. Along with that, art. 80 of the Code provides that only “central authority of executive power, which realizes the state policy on supervision (control) under the environment”, i.e. the State Ecological Inspectorate of Ukraine, could initiate such detention. It should be noted that in these cases a vessel can be detained only for the period not exceeding 72 hours. Upon expiry of 72 hours the vessel should be immediately released if a harbor master does not receive an arrest ruling of the court or the Maritime Arbitration Commission. Also it should be noticed that applicant (initiator) of the arrest, not a harbor master, shall bear responsibility for the losses caused by groundless arrest of the vessel. Ukrainian court practice knows numerous cases when vessels have been arrested by ecological authorities for securing of a maritime claim arisen out of sea pollution (see, for example, court ruling on arrest of m/v “Theresa Success” dd. 08.08.2013 (case #916/2090/13), the court ruling on arrest of m/v “Kaptan Teoman” dd. 20.08.2014 (case #916/2958/14), the court ruling on arrest of m/v “Nikolay Bauman” dd. 03.03.2015 (case #916/1609/13). Nevertheless, as experience of latest years shows, ecological authorities prefer to avoid this way, but use another “simplified” option, where application to the court is not required and court’s function is performed by the harbor master.

State Ecological Inspectorate (of the Black Sea) as (non-)authorized authority

We are talking about so-called “request-letters”, which ecological authorities usually send for execution to the harbor masters with reference to clause “g” of the art. 91 of the Merchant Shipping Code of Ukraine. This legislative norm imposes an undertaking to the harbor master to reject the vessel’s sail from the port in case of existence of the decision of the “authorized state authorities as provided by law”. Among others these decisions include decisions of the state authority of executive power, which realizing state policy on conducting a state supervision (control) in the sphere of environment protection. If you are not a lawyer, it could be difficult to understand quickly what exactly authority is indicated in aforesaid long law definition. The answer could be found in the Resolution of the Cabinet of Ministers of Ukraine #275 dd. 19.04.2017, which approved the Regulation on State Ecological Inspectorate of Ukraine. According to clause 1 of the Resolution, State Ecological Inspectorate is in deed the “central authority of executive power, which realizes state policy in conducting a state supervision (control) in the sphere of the environment protection, rational use and protection of environment”. The powers of the State Ecological Inspectorate include ecological control of goods and transport vehicles in the cross-border check points, drafting of letter of claims and court claims connected with damage to the environment, drafting of calculations of losses and damages caused due environment pollution and others.

Along with that, in the majority of known cases so-called “request letters” on vessels detention were executed on the letter-head and signed by the chief of the State Ecological Inspectorate of the Northern-Western Region of the Black Sea, which is a territorial body and subordinated to the State Ecological Inspectorate. This raises a legitimate question: whether a decision of the State Ecological Inspectorate of the Black Sea is enough legal ground in view of clause “g” of the article 91 of the Merchant Shipping Code? According to our opinion, the answer to this question could be found after complex analysis of clause “g”, where along with “central authority of executive power of supervision under environmental protection” are listed other state authorities like customs office, sanitary and quarantine service, fishing protection and state border service. As you can see the words “central authority” was used by the legislator solely for the decisions of the State Ecological Inspectorates, remaining its territorial branches “abroad”. Therefore, the harbor master is authorized to “revert” a request letters on vessel’s detention received from ecologists based on the fact that theses “decisions” were adopted by non-authorized state authority (do not forget article 19 of the Constitution of Ukraine, which is a norm of direct action).

When Ecological Inspectorates are Authorized to Conduct Ecological Control of the Vessel?

Without prejudice to aforesaid, it should be noted that attempts of conducting so-called “ecological control of the vessels” themselves are often made without due legal grounds. According to clause “b” of the article 202 of the Environment Protection Law, the competence of the State Ecological Inspectorate shall include conducting of ecological and radiological control of goods and transport vehicles, which are moved across the customs border. The procedure of conducting of ecological control in the cross-border check-points is defined in the Resolution of the Cabinet of Ministers of Ukraine #198 dd. 20.03.1995, upon which ecological control of water transport vehicles shall be executed only if visible floating particles are discharging from the vessel or there are visible spots of oil, oil-contained or other pollutant substances in the dumping area, which caused actual deterioration of the water quality in accordance with background figures of water quality in the area of water consumption. Similar rule is fixed in the Typical Technological Scheme of Clearance through the State Border, which is approved by the Resolution of the Cabinet of Ministers of Ukraine #451 dd. 21.05.2012 (as amended). Besides, according to the Typical Technological Scheme, if the inspector decides to conduct the ecological control, he should notify the marine agent of the particular vessel. The law does not provide for other cases for conducting ecological control of sea vessels. That is why in case of receiving a “letters of happiness” from the ecologists you can immediately ask for (a) evidences that visible floating particles were discharged from the particular vessel or there are visible oil, oil-contained or other pollutant substances in the dumping area and (b) evidences of actual deterioration of the water quality comparing with background figures of the water quality in the water consumption area. If relevant evidence proving aforesaid facts were not provided than there are no legal grounds for conducting of ecological control of the vessel and ecologists should not be allowed on board.

Discharge of Segregated Ballast – No Restrictions in accordance with MARPOL Convention

In conclusion we would like to remind that discharging of segregated ballast in the territorial sea, inland waters of Ukraine is permitted without restrictions and without control from the state authorities subject to the condition that ballast was taken on board in the Black or Azov sea before entrance into territorial waters of Ukraine. Operations with segregated ballast (including port water areas) are conducted in accordance with MARPOL 73/78. Ecologists are entitled to check whether segregated ballast corresponds to the norms of maximum allowable concentrations of polluting substances, again, only in case of detection of visible polluting substances in the dumping area, which caused actual deterioration of the water quality (see the Rules of Protection of Internal Sea Waters from Pollution).

Summary

Actions directed on prevention of pollution of sea port areas and bringing to responsibility of persons committed the sea pollution are of course useful and necessary case. State Ecological Inspectorate shall take care on aforesaid taking into account the tasks and functions of the Inspectorate provided by law. However, the “ecological control” in Ukrainian ports shall not in any case transformed into the “ecological terrorism”, when shipowners are threatened with possible vessel’s detention, which could be avoid in case of paying “special fees” and all that is executed as alleged “protection of environment”. In this regard professional competence, experience and knowledge of harbor masters shall play a key role during examination of the “letters of happiness” received from the “defenders of sea”.