Legal impacts on masters and crews in pollution cases. - a country wise comparison-

Transcription

1 Legal impacts on masters and crews in pollution cases - a country wise comparison- Diplomarbeit zur Erlangung des Grades eines Diplom-Wirtschaftsingenieurs für Seeverkehr (FH) an der Hochschule Bremen Fachbereich Nautik und Internationale Wirtschaft Studiengang Nautik vorgelegt von: Heinrich Albert Braun Matrikel Nummer: aus: Borgfelder Landstraße Bremen Tel.: (0421) Referent: Korreferent: Prof. Kapt. Peter Irminger Kapt. Willi Wittig, MSc. Bremen, den 13. Oktober 2003

2 Table of Contents ACKNOWLEDGEMENTS... III List of Tables... IV List of Diagrams... IV List of Annexes... V List of Abbreviations... VI 1. Introduction International Legislation International Convention for the Prevention of Pollution from Ships United Nations Convention on the Law of the Sea International Convention for the Unification of certain rules relating to Penal Jurisdiction in matters of Collision or other incidents of navigation National legislation United States of America Act to Prevent Pollution from Ships (APPS) Clean Water Act (CWA) The False Statements Act Japan Quick Release System Penalties and fines in Japan German legislation The role of P&I-Clubs Purpose and structure of P&I-Clubs Fines for marine pollution II

3 5. National aspects of marine pollution Method of collecting information National approaches to marine pollution control Description of national marine pollution legislation Australia Brazil Denmark Egypt Estonia Finland Germany Greece Iceland Japan Jordan Kenya Kuwait Latvia Lebanon Lithuania Netherlands Nigeria Papua New Guinea Peru Poland Russia Senegal Spain Sri Lanka Sultanate of Oman Sweden Thailand Turkey Ukraine United Arab Emirates United States of America Uruguay Conclusion Helcom Recommendation 19/ Evaluation of world maps Bibliography III

4 ACKNOWLEDGEMENTS First of all I would like to thank my family for their support, not only material but also for the mental support for bringing this final thesis to an end. Thanks to all the correspondents who filled out the questionnaire for correspondents and made this final thesis work. It is not often found that correspondents who have a very busy job take the time to help a young nautical student, free of charge, with his final thesis. I appreciate it very much. Special thanks go to Dr. Capt. Phil Anderson, FNI BA, from the North of England P&I-Club who allowed me to use the correspondent network and offered me his support for this project. A lot of thanks go to Capt. Stefan Douvier from the Police in Bremen, who offered to make an interview on the problems of practical aspects of marine pollution legislation. Capt. Wolf-Peter Rabitz from PANDI Services in Bremen helped me a lot with an interview to understand the principles of P&I-insurance. This final thesis would not have been possible without the help and inside knowledge of Prof. Capt. Peter Irminger and Capt. Willi Wittig, M.Sc. III

5 List of Tables Table 1 Ratification Status of MARPOL-Annexes...6 Table 2 Fines for marine pollution in Japan...24 Table 3 Fines for marine polluters in Germany...27 List of Diagrams Diagram 1 Prosecution of marine polluters in the United States of America 21 Diagram 2 Marine pollution prosecution in Germany.26 IV

6 List of Annexes Annex 1 : World Maps Annex 2: Questionnaire for Correspondents V

7 List of Abbreviations BSH Bundesamt für Seeschiffahrt und Hydrographie BV KatBin-See Buß- und Verwarnungsgeldkatalog für Binnen- und Seeschiffahrtstrassen Capt. Captain Cf confer, compare CLC International convention on civil liability for oil pollution damage etc. Etcetera EUR Euro GRT Gross tonnage HELCOM Helsinki Commission incl. Including i.e. Id est idem That same IMO International Maritime Organization max. Maximum MARPOL International Convention for the Prevention of Pollution from Ships min. Minimum M.V. Motor vessel M.T. Motor tanker Nm Nautical mile OPA 90 Oil Pollution Act 1990 P&I Protection and Indemnity ppm Parts per million Re: Reference, Response SDR Special Drawing Right UNCLOS United Nations Convention on the Law of the Sea US United States of America USD United States of America Dollar VI

8 1. Introduction When the tanker Prestige broke in half on November 14 th, 2002 the captain, A. Mangoulas, did not get away with it. Further investigation of the case showed that the Spanish government needed a scapegoat for the public and press. This scapegoat was the 67 years old A. Mangoulas, a tanker captain, with more than 32 years of experience at sea. The captain was arrested in a high security prison and a bail of 3 Million USD was issued. After 3 months in prison the captain was released but had to remain in Spain and report daily to the nearest police station. He was not granted contact to his lawyers during his stay in prison. Until today, no further criminal investigation on the management of the tanker or the classification society was held. Another famous case of criminal investigation of masters and crews was the case of Capt. Joe Hazelwood, an experienced tanker captain. At an age of 32, Joe Hazelwood was appointed the youngest captain on a tanker of the Exxon Shipping Company. After 10 years of service as a captain, Joe Hazelwood was appointed captain of the MT Exxon Valdez, a 296 m tanker of Exxon Shipping Company, the pride of the fleet. Job reviews of the work of Capt. Joe Hazelwood stated that he had excellent abilities of ship handling but also that he was missing initiative and failed to follow company policies. On March 24 th, 1989 the Exxon Valdez ran aground Bligh Reef in the Prince William Sound and caused one of the largest oil spills in maritime history. Captain Joe Hazelwood had left the watch to Third Mate Gregory Cousins who was not licensed to command the vessel through Prince Williams Sound. The helmsman was trained insufficiently and the vessel struck Bligh Reef. An alcohol test taken 9 ½ hours after the accident revealed Joe Hazelwood having been drunk during the incident because of a result of blood alcohol concentration of 0.61 where the acceptable limit at this time was only 0.4. Joe Hazelwood had a negative record of alcohol incidents and the company managers knew it. One inspector actually advised Joe Hazelwood to join alcoholics anonymous. He lost his driver s license three times after being caught driving under the influence of alcohol. After more than 20 years of service for Exxon Shipping Company Capt. Joe Hazelwood was fired immediately and lawyers appointed by Exxon Shipping Company stopped working for Captain Hazelwood. Charges against Joe Hazelwood were prepared immediately including: Operating a watercraft while intoxicated, reckless endangerment, negligent discharge of oil and criminal mischief. He was arrested by the Police in New York and his family was harassed by phone calls from the Press. His captain s license was suspended for nine months and he was convicted of the charge of negligent discharge of oil. He was sentenced to 1000 hours of community service to be held in Alaska. The Judge suggested that the work should include cleaning up oiled rocks in the Prince William Sound. In 1990 Captain Joe Hazelwood was found not guilty by State Court of operating a vessel intoxicated. He is now working as a claim adjuster with a New York law firm. 1

9 Pollution of the marine environment has become more and more important in the recent past. The introduction of MARPOL and its ratification by most member states of the IMO has shown the intention of many nations to prevent marine pollution from oil and other harmful substances. Nations have installed very effective national legislation to prosecute marine polluters. The Antra General Claim Information of November 2000 states that polluting the marine environment with nuclear wastes in the territorial waters of the United Arab Emirates may result in death penalty and an additional fine to the responsible person of 270,000 USD to 2,700,000 USD. Failing to inform responsible authorities of the pollution incident may result in imprisonment for at least one year and/or a fine of 27,000 USD to 136,000 USD. 1 Are these fines and penalties only issued to deter persons from polluting the marine environment or are fines systematically used to import hard currency into empty government pockets? Some ship owners and operators accept the fines and penalties as inevitable in certain countries. The motto is: Better pay the fine, before any further delay will arise from detention! P&I-Clubs often take care of fines from minor pollution cases on a routine basis depending on the member statistics and the discretion of the directors. What really means marine pollution from ships? To find the answer to this question, marine pollution must be defined. An appropriate definition of marine pollution is given in the United Nations Convention on the Law of the Sea (UNCLOS). For the purposes of this Convention: (4) pollution of the marine environment means the introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) which results, or is likely to result, in such deterious effects as harm to living and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of seawater and reduction of amenities; 2 This definition indicates that marine pollution is not only limited to oil pollution but can be expanded to marine pollution from ship s garbage, sewage, disposal of harmful packed substances and disposal of industrial waste, including nuclear substances. Effects of oil pollution on fish, seabirds and water quality are still heavily discussed among experts. Lethal concentrations of oil for animals are relatively low. In the pamphlet of the Stadtwerke Hamm the reader finds that one litre of oil spilled into drinking water can damage 1 Million Litres of water and leave it undrinkable to humans. 3 Especially seabirds are influenced by mayor oil spills. Seabirds die from hypothermia because of decreased insulation, waterproofing and buoyancy. On average it is estimated that 300,000 seabirds are killed annually in Atlantic Canada 1 Antra Circular, 4 th Sep UNCLOS 1982 Article 1.1 Paragraph 4, 09 th Dec cf: Stadtwerke Hamm, Trinkwasser Tipps zum Umweltschutz, Stand Juni 2002, P.2 2

10 owing to illegal discharges of oil from ships. 4 This equals the amount of seabirds killed by the Exxon Valdez disaster and shows that major oil pollution originates not only from collisions or groundings but also from day-to-day operation of the ship. However impacts of oil pollution are hard to predict because many influencing factors like swell, wind, sea, nature of bio-mechanisms, type of oil and quantity of oil have to be considered. A severe oil spill was the stranding of MT Braer on January 5 th 1993, with a quantity of more than 85,000 tons of Crude Oil on the Shetland Islands but the effect on nature was a lot smaller than expected, because of a storm in this area that spread the oil very far and no thick oil film was produced. Quite a large number of oil spills remain undetected and the polluters are not found. Pollution caused by ship s garbage, especially plastics, is a severe threat to the fishing and tourism industry. Effects of disposal of nuclear wastes can hardly be estimated but the long-term effects are enormous and the problem of disposal remains unsolved. Effects of harmful biological organisms which are imported through ballast water are lately discussed more and more and national legislation is adjusted by nations that are affected most. Australia, as one of the largest mineral and coal shippers worldwide, has strict legislation for the discharge of ballast water because Bulk Carriers arrive in ballast and pump their ballast water outboards before commencing loading operations. 4 Wiese, F.: Seabirds and Atlantic Canada s Ship Source Oil Pollution, 2002, P.3 3

11 2. International Legislation When talking about marine pollution one should have a profound knowledge of anti-marine pollution legislation. Important to understand is the difference between international laws and their corresponding national laws. According to the Gard Handbook on Marine pollution there are already 83 international and regional laws and conventions dealing with marine pollution. 5 Not included in this list are national laws and conventions, which have to be followed by ship operators trading to those countries. In my opinion this is a major problem for captains and crews because they have to consider all the different national regulations. In the following paragraphs I will introduce several important conventions and laws that are important for the understanding of marine pollution legislation. Only a short overview on MARPOL and its ratification status will be provided. 2.1 International Convention for the Prevention of Pollution from Ships The International Convention for the Prevention of Pollution from Ships (MARPOL) was introduced in 1973 in order to prevent pollution of the marine environment by ships from operational or accidental causes. The introduction of special areas also took place in Special areas take into consideration the vulnerability of certain sea areas and are different for every Annex. Ships trading in international waters must carry on board valid international certificates complying with the MARPOL-Convention. The structure of MARPOL consists of articles, protocols and annexes. Marpol consists of 20 articles 2 protocols 6 annexes Marpol applies to all vessels, regardless of size. Any vessel flying the flag of a contracting party or trading in an area that has ratified MARPOL is included. Only military vessels and vessels operated by governments are not affected. Annex I consists of regulations to prevent pollution by oil. One has to distinguish between oil pollution from oil tankers, for example from tank washing, or oil pollution from conventional vessels discharging their engine room bilge water. All tankers over 150 GRT and all conventional vessels over 400 GRT are affected. Only few exceptions to this rule were made. Discharge of oil in special areas is prohibited. Special areas defined by Annex I are: Mediterranean Sea, Baltic Sea, Black Sea, Red Sea, Gulf area, Gulf of Aden and Antarctic. Every vessel is required to complete an oil record book. This annex established a so called bilge water de-oiler that limits the oily content of the engine room bilge water to 15 ppm for legal voluntary discharge outside of special areas. Discharge of oily bilge water remains a problem of the maritime world because some countries have failed to establish reception facilities for large amounts of oily bilge water. Costs for legal 5 cf: Gold, E.: Gard Handbook on Marine Pollution, 1997, P.56. 4

12 discharge of sludge and bilge water are noticeable and it is lucrative for chief engineers to pump contaminated bilge water outboards. Annex II contains requirements for the discharge of noxious liquid substances carried in bulk, for example discharge from chemical tankers into the oceans. More than 250 chemicals are included in this annex. In no case discharge of noxious liquid substances is permitted when the coastline is closer than 12 nautical miles. The substances identified in this Annex are devided into 4 categories. These categories are: Category A: Category B: Category C: Category D: High hazard to human health or aquatic life and moderately to highly toxic to aquatic life. Produce tainting of sea food and are slightly to moderately toxic to aquatic life. Substances slightly toxic to aquatic life. Substances non-toxic to aquatic life which may have a nuisance effect on amenities. For the discharge of these chemicals a special underwater outlet was established that dilutes the chemicals with sea water. Furthermore the ship s crew has to provide information to the authority by completing a cargo record book. Annex III contains information and regulations about pollution prevention by harmful substances carried by sea in packaged forms, or in freight containers, portable tanks or road and rail tank wagons. This Annex basically introduces the IMDG-Code (International Maritime Dangerous Goods Code) with its requirements for stowage and packing of dangerous cargo. But also labelling according to the IMDG-Code is required by MARPOL, as well as the correct technical name in the cargo documents, i.e. Dangerous Cargo List and Cargo Manifest. Annex IV contains regulations for the Prevention of Pollution by Sewage from Ships. Sewage is defined as drainage and other wastes from any form of toilets, urinals and wash basins. Also drainage from any kind of spaces containing living animals is included in Annex IV. This Annex has led the industry to install sewage plants on board vessels. Annex V sets standards for pollution prevention from garbage. Garbage is defined as victual, domestic and operational waste. Certain special areas are defined and discharge rules for ship s garbage are identified. The awareness for keeping the oceans clean has risen due to this Annex. Personally, I know captains that do not allow any discharge of garbage into the sea. It is always prohibited to discharge plastics, including fibre ropes. No exception is made. Annex VI provides information about Prevention of Air Pollution through Exhaust Gas of Ships. Maximum amounts of NO x and SO x output are introduced. This Annex will bring major changes to engine developers and heavy fuel oil traders and reduce the bad image of shipping as allegedly one of the major air polluters on the planet. This represents only a short summary on all existing annexes of MARPOL. Optional annexes, as defined in Article 14, are Annex III, IV,V and VI. 5

13 Governments can decide to access, accept, approve or ratify the MARPOL- Convention without having any obligation to the optional Annexes. On the IMO-Website following ratification data can be found which indicates the number of contracting states to Annex I and II is 125 nations representing 97 % of the world tonnage, Annex III is 107 nations representing % of the world tonnage, Annex IV is 91 nations representing % of the world tonnage, Annex V is 112 nations representing % of the world tonnage, Annex VI is 8 nations representing 26.27% of the world tonnage of the MARPOL-Convention. 6 Article 15 which is titled entry into force provides that different Annexes enter into force twelve months after two conditions have been fulfilled. Firstly, not less than 15 states have to become parties to the Convention. Secondly, these 15 states have to account for more than 50% of the total gross tonnage of the world s merchant fleet. Any nation which signs, ratifies, accepts, approves or accesses the Marpol-Convention will be a Party to the Convention. Following table indicates the ratification status of the different annexes: Table 1 Ratification Status of MARPOL-Annexes Annex I Annex II Annex III Regulations for the Prevention of Pollution by Oil Regulations for the Control of Pollution by Noxious Liquid Substances in Bulk Regulations for the Prevention of Pollution by Harmful Substances Carried by Sea in Packaged Forms 2 nd October nd October st July 1992 Annex IV Prevention of Pollution by Sewage from Ships 27 th September 2003 Annex V Annex VI Prevention of pollution by Garbage from Ships Prevention of Air Pollution through Exhaust Gas of Ships 31 st December 1988 Not yet in force Source: Own table with data from idem 6 cf: IMO: Summary of Status of Conventions, mainframe.asp?topic_id=247, 04 th Sep

14 This Convention can only be effective when regular inspections are held and there is no doubt about responsibilities of authorities and procedures for the prosecution of marine polluters. For the better understanding of prosecution and responsibilities of nations the definitions in Article 2 have to be read. The most important definition is the definition of Administration which is the following: For the purposes of the present Convention, unless expressly provided otherwise: Administration means the Government of the State under whose authority the ship is operating. With respect to a ship entitled to fly a flag of any State, the Administration is the Government of that State. With respect to fixed or floating platforms engaged in exploration and exploitation of the sea-bed and subsoil thereof adjacent to the coast over which the coastal state exercises sovereign rights for the purposes of exploration and exploitation of their natural resources, the Administration is the Government of the coastal State concerned. 7 MARPOL is an international convention that has to be inspected and if necessary punishments for non-compliance must be enforced. For this reason Article 4, titled violation, was added to MARPOL. Any violation to the requirements of the present Convention shall be prohibited and sanctions shall be established therefore under the law of the Administration of the ship concerned wherever the violation occurs. If the Administration is informed of such a violation and is satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, it shall cause such proceedings to be taken as soon as possible, in accordance with its law. 8 This paragraph gives responsibility to the flag state if any violation to the MARPOL-Convention occurs. This includes violations to marine environment legislation even on the High Seas where no other nation is responsible for marine pollution legislation enforcement. In Article 4, Paragraph 2, MARPOL defines responsibilities in territorial waters. (2) Any violation of the requirements of the present Convention within the jurisdiction of any Party to the Convention shall be prohibited and sanctions shall be established therefore under the law of that Party. Whenever such a violation occurs, that Party shall either: (a) (b) cause proceedings to be taken in accordance with its law; or furnish the Administration of the ship such information and evidence as may be in its possession that a violation has occurred. 9 Paragraph 4 is a guideline on how severe the penalty should be. The penalties specified under the law of a Party pursuant to the present article shall be adequate in severity to discourage violations of the present Convention and shall be equally severe irrespective of where the violations occur. 10 However up to date there is no international regulation in force which establishes a uniform penal legislation in case of marine pollution. 7 MARPOL 73/78, Article 2 Definitions, Paragraph 5, MARPOL 73/78, Article 4 Violation, Paragraph 1, idem Paragraph 2 10 idem Paragraph 4 7

15 Furthermore Article 6 indicates what needs to be done in case of a violation to the MARPOL-Convention in regard to enforcement procedures. It is called Detection of violations and enforcement of the Convention. Especially Paragraph 4 is of major interest. Upon receiving such evidence, the Administration so informed shall investigate the matter, and may request the other Party to furnish further or better evidence of the alleged contravention. If the Administration is satisfied that sufficient evidence is available to enable proceedings to be brought in respect of the alleged violation, it shall cause such proceedings to be taken in accordance with its law as soon as possible. The Administration shall promptly inform the Party which has reported the alleged violation, as well as the Organization, of the action taken. 11 In MARPOL, only articles 4 and 6 deal with the responsibilities of nations in marine pollution cases. Article 4 provides that if the administration is informed of a marine environment pollution it shall cause proceedings in accordance with its law. This requires any state to report pollution incidents to the flag state of the concerned vessel for the establishment of further actions against the ship, ship owner or ship s crew. Furthermore Article 4, Paragraph 2 says, Any violation of the requirements of the present Convention sanctions shall be established therefore under the law of that Party. 12 This explicitly demands national laws of the nation that is affected by marine pollution to come into force for further prosecution. This can also call for penal jurisdiction for the master and crewmembers. It is not explained further in the context of MARPOL what is meant by sanctions. Sanctions can be detaining a vessel but leaving the crew without charges. It can mean arresting the master and crew for having some kind of lien from the ship owner. This happens often without a trial or the chance for the crewmember or master to get legal advice. These sanctions are hard to estimate for a crewmember, captain, owner or operator because they largely depend on national legislation. Usually crews are only educated on their own national penal jurisdiction. For example a German Officer will be trained on civil and penal jurisdiction in Germany. When he hires on a vessel flying the flag of Liberia, national legislation of Liberia comes into force. When pollution of the marine environment occurs, charges will be prepared either under the law of Liberia or the coastal state that is affected by the pollution. This will cause serious problems for the German Officer who has little knowledge beyond the MARPOL Convention and perhaps some national laws dealing with penal matters. Nautical universities are encouraged to expand their shipping law programs to foreign national penal jurisdiction of major concern, for example U.S. laws. Article 4 also gives an idea on how severe fines and penalties should be. Fines should discourage violations to the MARPOL-Convention. 13 This means that fines and imprisonment imposed by authorities should have a deterrent factor to prevent marine pollution. The paragraph also indicates that penalties should be adequate 11 idem Article 6, Paragraph 4 12 MARPOL 73/78, Article 4, Paragraph 2, cf: idem Paragraph 4 8

16 in severity. However every nation and culture has different interpretations for the term: adequate in severity. In real practice paragraph 4 is hard to realize. A penalty that has to be equally severe irrespective of where the violation occurred cannot be issued when there is no international convention that limits penalties or describes minimum and maximum fines. Every nation is depending on its own national legislation, either civil or penal jurisdiction. It is clear that nations have, because of their independent history, religion and development, a different kind of jurisdiction system. In most democratic countries penalties like death penalties or torture had been banned but some countries still impose such penalties on pollution crimes committed at sea. The MARPOL-Convention is the standard international convention for marine pollution. Offences against MARPOL are used to start any kind of prosecution in national legislation. 2.2 United Nations Convention on the Law of the Sea The United Nations have introduced the United Nations Convention on the Law of the Sea ( UNCLOS). The Convention was prepared for signature on December 10 th, 1982 in Montego Bay, Jamaica, after more than 14 years of discussion and amendments. The Convention consists of 320 articles and nine Annexes. The articles are divided into different Parts and came into force on November 16 th, The following list will indicate the different parts of the United Nations Convention on the Law of the Sea: Part I Part II Part III PART IV PART V PART VI PART VII PART VIII PART IX PART X PART XI INTRODUCTION TERRITORIAL SEA AND CONTIGUOUS ZONE STRAITS USED FOR INTERNATIONAL NAVIGATION ARCHIPELAGIC STATES EXCLUSIVE ECONOMIC ZONE CONTINENTAL SHELF HIGH SEAS REGIME OF ISLANDS ENCLOSED OR SEMI-ENCLOSED SEAS RIGHT OF ACCESS OF LAND-LOCKED STATES TO AND FROM THE SEA AND FREEDOM OF TRANSIT THE AREA PART XII PROTECTION AND PRESERVATION OF THE MARINE ENVIRONMENT PART XIII PART XIV PART XV MARINE SCIENTIFIC RESEARCH DEVELOPMENT AND TRANSFER OF MARINE TECHNOLOGY SETTLEMENT OF DISPUTES 9

17 PART XVI PART XVII ANNEX I ANNEX II ANNEX III ANNEX IV ANNEX V ANNEX VI ANNEX VII GENERAL PROVISIONS FINAL PROVISIONS HIGHLY MIGRATORY SPECIES COMMISSION ON THE LIMITS OF THE CONTINENTAL SHELF BASIC CONDITIONS OF PROSPECTING; EXPLORATION AND EXPLOITATION STATUTE OF THE ENTERPRISE CONCILIATION STATUTE OF THE INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA ARBITRATION ANNEX VIII SPECIAL ARBITRATION ANNEX IX PARTICIPATION BY INTERNATIONAL ORGANIZATIONS Most of the articles define limits of the territorial sea, contiguous zone and exclusive economic zone for any nation. Coastal States exercise sovereignty over their territorial sea. Nations have the right to establish its breadth up to a limit of 12 nautical miles. Foreign vessels are granted innocent passage through those waters. Straits used for International Navigation have to allow any vessel or aircraft transit passage. In the Exclusive Economic Zone every Coastal State has sovereign rights regarding natural resources and certain economic activities. The Exclusive Economic Zone has normally a breadth of 200 nautical miles. Any nation has the freedom of navigating, researching and fishing in the High Seas. Many of the articles deal with fishing sanctions and exploitation of ocean resources, for example Articles 61 to 68. There is more to the UNCLOS-Convention than only setting frontiers on the oceans. It can be found in the Preamble: The State Parties to this Convention, Recognizing the desirability of establishing through this Convention, with due regard for the sovereignty of all States, a legal order for the seas and oceans which will facilitate international communication, and will promote the peaceful uses of the seas and oceans, the equitable and efficient utilization of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment, 14 Protection and preservation of the marine environment is one major goal of the Law of the Sea. In order to achieve it, UNCLOS gives certain rights to nations in regard of marine environment jurisdiction. Article 27 is part of Section 3, which is designated for the innocent passage in the territorial sea and applies to merchant ships and government ships operated for commercial purposes. Article 27 is named criminal jurisdiction on board a foreign ship. 1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to 14 UNCLOS 1982, Preamble, Paragraph 4, 09 th Dec

18 conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: (a) (b) (c) (d) if the consequences of the crime extend to coastal State; if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag state; or if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. 15 This article gives the right to the coastal state to exercise criminal jurisdiction when there are consequences extending to its territories. This is the basis for penal jurisdiction in the territorial sea and contiguous zone. The rule of thumb that says only the law of the flag state is valid onboard a vessel is proven wrong by this article. This gives any nation the right to send inspectors on board a vessel when pollution has occurred that affects the marine environment of the coastal state. The next article, article 28, deals with civil jurisdiction. One can find a clear distinction between criminal jurisdiction and civil jurisdiction. The coastal state will not have the right to stop or divert a vessel only because of civil trials against crewmembers or captains. The difference between civil jurisdiction and criminal jurisdiction is that civil jurisdiction always deals with damage control or repair between two individuals. This can be also a trial between a company and a natural person. Criminal jurisdiction always deals with crimes committed against law principles of society. Article 39 defines the duties of ships and aircraft during transit passage. 2. Ships in transit passage shall: (b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships. 16 Article 73 applies to the Exclusive Economic Zone and describes Enforcement of laws and regulations of the coastal state. 1.) The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it in conformity with this Convention. 2.) Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. 3.) Coastal State penalties for violations of fisheries laws and regulations in the exclusive economic zone may not include imprisonment, in the absence of 15 idem Part II, Section 3, Article UNCLOS 1982, Part III, Section 2, Article 39, Paragraph 2, 09 th Dec

19 agreements to the contrary by the States concerned, or any other form of corporal punishment. 4.) In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the flag State, through appropriate channels, of the action taken and of any penalties subsequently imposed. 17 One can see that the coastal state has enormous power even in the exclusive economic zone which has a breadth of 200 nautical miles from the base line of a nation. Although this article applies to inspection and arrest of vessels it is also possible that crewmembers can be arrested when owners, charterers or operators are not available. Especially the captain, as a legal representative of the owner, is valuable to the coastal state for further claims. Article 92 applies to the High Seas and is named Status of Ships. 1. Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. 2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. 18 This article indicates that when a vessel is sailing on the High Seas only the jurisdiction of the flag state applies. The problem arising out of this clear responsibility is that any nation affected by pollution is depending on an administration of the flag state that takes its job serious. This means even small registries need to enforce and control their legislation effectively. Now any coastal state has to trust in the ability of the flag state to install effective measurements to deter vessels from committing crimes, and here especially marine environmental crimes. Article 94 gives the Administration of the flag state a minimum number of duties Article 94 Duties of the flag State 1. Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. 2. In particular every State shall: (a) (b) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. 17 idem Part V, Article UNCLOS 1982, Part VII, Section 1, Article 92, 09 th Dec

20 6. A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation. 7. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation. 19 It is a duty of every nation participating in sea trade as a flag state to install effective laws and regulations that control good shipping practice. In many cases there is no real link between the flag state and the operator or crew of the vessel. Article 97 is of further importance to jurisdiction in the High Seas. Penal jurisdiction in matters of collision or any other incident of navigation 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. 20 This article applies to collision or other incidents of navigation on the High Seas. Penal proceedings against the master or any other member of the crew can only be instituted by either the flag state or the State of which such person is national. This clearly exempts the coastal state or any other nation from penal jurisdiction. The most interesting part of the UNCLOS-Convention is Part XII which is named Protection and Preservation of the Marine Environment. Article 211 deals with Pollution from vessels. It rules that the nation where the ship is registered has to establish national laws regarding pollution that have to be followed by the ship. This would be the basis for further jurisdiction.the article goes further by saying that these regulations shall have at least the same effect as the generally accepted international rules and standards idem Article UNCLOS 1982, Part VII, Section 1, Article 97, 09 th Dec cf: idem Part XII, Section 5, Article 211, Paragraph 2 13

21 Paragraph 4 gives every coastal state the right to adopt laws against marine pollution from foreign vessels in their territorial waters. This paragraph reads the following: Coastal States may, in the exercise of their sovereignty within their territorial sea, adopt laws and regulations for the prevention, reduction and control of marine pollution from foreign vessels, including vessels exercising the right of innocent passage. Such laws and regulations shall, in accordance with Part II, section 3, not hamper innocent passage of foreign vessels. 22 Paragraph 5 deals with the Exclusive Economic Zone and legislation there. Coastal States, for the purpose of enforcement as provided for in section 6, may in respect of their exclusive economic zones adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organization or general diplomatic conference. 23 The difference between legislation in territorial waters and the Exclusive Economic Zone becomes clear. In the Exclusive Economic Zone only international legislation shall be transferred to national legislation. What every nation does in its own territorial waters can go far beyond international standards if innocent passage of vessels is guaranteed. The translation from international law to national law in the Exclusive Economic Zone is important for the enforcement of penalties and fines by national courts. Article 217 is called Enforcement by flag states and describes enforcement responsibilities in pollution cases. Especially paragraphs 1,4 and 8 are of major importance for the enforcement of marine pollution regulations. 1. States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established through the competent international organization or general diplomatic conference, and with their laws and regulations adopted in accordance with this Convention for the prevention, reduction and control of pollution of the marine environment from vessels and shall accordingly adopt laws and regulations and take other measures necessary for their implementation. Flag States shall provide for the effective enforcement of such rules, standards, laws and regulations, irrespective of where a violation occurs. 4. If a vessel commits a violation of rules and standards established through the competent international organization or general diplomatic conference, the flag State, without prejudice to articles 218, 220 and 228, shall provide for immediate investigation and where appropriate institute proceedings in respect of the alleged violation irrespective of where the violation occurred or where the pollution caused by such violation has occurred or has been spotted. 22 idem Part XII, Section 5, Article 211, Paragraph 4 23 UNCLOS 1982, Part XII, Section 5, Article 211, Paragraph 5, 09 th Dec

22 8. Penalties provided for by the laws and regulations of States for vessels flying their flag shall be adequate in severity to discourage violations wherever they occur. 24 These paragraphs demand effective legislation to enforce marine pollution regulations by the Flag State irrespective where the incident occurred. This includes also the High Seas. Also paragraph 4 demands immediate investigations after a violation has occurred. Especially paragraph 8 shows how anti-marine pollution legislation is created. It shall discourage violations wherever they occur. By installing effective and severe marine pollution legislation, flag states should increase seafarers and operators awareness for the marine environment. Article 220 is named Enforcement by coastal States. Especially Paragraphs 1,2,3 and 6 are of major importance. 1. When a vessel is voluntarily within a port or at an off-shore terminal of a State, that State may, subject to section 7, institute proceedings in respect of any violation of its laws and regulations adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels when the violation has occurred within the territorial sea or the exclusive economic zone of that State. 2. Where there are clear grounds for believing that a vessel navigating in the territorial sea of a State has, during its passage therein, violated laws and regulations of that State adopted in accordance with this Convention or applicable international rules and standards for the prevention, reduction and control of pollution from vessels, that State, without prejudice to the application of the relevant provisions of Part II, section 3, may undertake physical inspection of the vessel relating to the violation and may, where the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws, subject to the provisions of section Where there are clear grounds for believing that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards, that State may require the vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred. 6. Where there is clear objective evidence that a vessel navigating in the exclusive economic zone or the territorial sea of a State has, in the exclusive economic zone, committed a violation referred to in paragraph 3 24 idem Part XII, Section 6, Article 217, Paragraphs 1,4 and 8 15

23 resulting in a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State, or to any resources of its territorial sea or exclusive economic zone, that State may, subject to section 7, provided that the evidence so warrants, institute proceedings, including detention of the vessel, in accordance with its laws. 25 In paragraph 1 any coastal state is given the right to install their own regime of national laws regarding maritime pollution and also enforce it on a national basis. This could include penal jurisdiction for each crewmember. The same is valid for Paragraph 2 which applies to vessels sailing in the territorial sea. Part II, Section 3 deals with the right for innocent passage. This has to be guaranteed at all times to any vessel. Vessels navigating in the Exclusive Economic Zone, as described in Paragraph 3, have to give information regarding identity and port of registry, last and next port of call and other relevant information when a maritime pollution crime has been committed. If there is any kind of evidence for violation to marine pollution regulations resulting in major damage to the coastline, even detention of the vessel in the Exclusive Economic Zone is allowed.this evidence can be spotting of oil slicks by a radar surveillance airplane. Article 221 makes provisions for cases of marine pollution on the High Seas, but with an effect on the coastline of a certain state. 1. Nothing in this Part shall prejudice the right of States, pursuant to international law, both customary and conventional, to take and enforce measures beyond the territorial sea proportionate to the actual or threatened damage to protect their coastline or related interests, including fishing, from pollution or threat of pollution following upon a maritime casualty or acts relating to such a casualty, which may reasonably be expected to result in major harmful consequences. 2. For the purposes of this article, "maritime casualty" means a collision of vessels, stranding or other incident of navigation, or other occurrence on board a vessel or external to it resulting in material damage or imminent threat of material damage to a vessel or cargo. 26 This article expands the right of a nation to act on a maritime casualty to protect their own shoreline. This becomes relevant if one thinks about the danger of major oil spills which can have an effect on the coastline even if the coastline is several hundred nautical miles away. Section 7 is named Safeguards. The articles in section 7 are the basis for any prosecution of laws regarding marine pollution. Article 224 explains that only officials, warships, military aircrafts or other ships or aircrafts clearly marked and identifiable as being on government service and authorized to that effect, may enforce laws against foreign vessels. Article 225 demands any official not to bring any vessel to an unsafe port or endanger its navigation. Article 226 is called Investigation of foreign vessels. It sets standards for inspecting and investigating foreign vessels. It limits the time of detention for vessels. The time of detention for a vessel should not be longer than necessary for the purpose of the investigation. 25 UNCLOS 1982, Part XII, Section 6, Article 220, Paragraphs 1,2,3 and 6, 09 th Dec UNCLOS 1982, Part XII, Section 6, Article 221, 09 th Dec

24 Physical inspections of vessels should be limited to the examination of certificates and records. Further physical inspection is only allowed when the controlling officer finds clear grounds for believing that the equipment does not correspond with the documents or when the documents are not sufficient to confirm the status of the equipment. This could also be the case when no documents can be found on the vessel. Paragraph B gives the shipowner the right to issue a financial security for the release of the vessel. Any nation has to accept a financial security and guarantee the release of the vessel. When the state finds the vessel not seaworthy, release can be made conditional. The coastal state must notify the flag state of the vessel promptly of a conditional release. 27 Article 228 regulates the suspension and restriction on institution of proceedings. When violations to international marine pollution legislation outside the territorial sea are detected, proceedings of the coastal state affected shall be suspended within 6 months after proceedings by the flag state are initiated. Often flag states do not cope with their duties. Then the coastal state has still the right to open proceedings. Additionally, unlimited right for proceedings for the coastal state against the polluter is given when major damage to the coastline is expected. Article 230 is named monetary penalties and the observance of recognized rights of the accused. Monetary penalties are allowed for violations beyond the territorial sea and in the territorial sea but only if there is not any wilful and serious act of pollution. Article 232 dictates that states are liable for any damage or loss resulting of unreasonable measures during an inspection or detention of foreign vessels. The UNCLOS Convention is for sure one of the most powerful and effective international laws on the oceans especially in terms of marine pollution. According to the UN-Website, 157 nations have signed the United Nations Law of the Sea and 142 nations have ratified the main body of the International Convention. 28 This represents the majority of nations of the world. UNCLOS does one important declaration: it sets standards of responsibility in marine pollution cases. For prosecution purposes, one can find only little information in the UNCLOS-text. Penal jurisdiction is left to the discretion of the nation affected by marine pollution from ships. Every nation is requested to install effective laws and regulations on a national basis and enforce these by providing regular inspections and surveys. Limits to this national legislation are the right of innocent passage of vessels flying foreign flags. The international character of the UNCLOS-Convention makes it fairly difficult for trials in national courts. It should regulate the responsibilities of nations and prevent disputes between nations. For this final thesis the UNCLOS-Convention is important because it sets responsibilities and is the basis for all further national legislation. 27 idem Article cf: United Nations, 15 th Sep