Law firm Hill Dickinson’s senior associate Chris Primikiris presents the first in a two-part look at the legal implications of the Ballast Water Management Convention
8 September 2019 – the next important date in the International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 (Convention)’s implementation timeline – is fast approaching. With more of the existing fleet needing to comply with the more stringent D-2 standard under the Convention, this article serves as a useful reminder of the circumstances where the Convention applies and also the requirements for compliance.
The Convention was adopted by International Maritime Organization (IMO) in 2004 and came into force on 8 September 2017 (implementation date). As of April 2018, the Convention had been ratified by 69 countries, representing over 75% of the world’s merchant shipping tonnage.
The aim of the Convention is to manage the ships’ ballast water (by mechanical, physical, chemical and biological processes, either singularly or in combination) in order to remove, render harmless, or avoid the uptake or discharge of harmful aquatic organisms and pathogens within ballast water and sediments. With the increase of international trade, shipping was one of the major factors leading to aquatic organisms being introduced to different environments and possibly threatening the existing marine ecosystems.
Under the Convention ‘ship’ is defined as a ‘vessel of any type whatsoever operating in the aquatic environment and includes submersibles, floating craft, floating platforms, floating storage units (FSUs) and floating production storage and offloading units (FPSOs).’
The Convention applies to ships entitled to fly the flag of a contracting party (and those that operate under the authority of that party irrespective of flag) which use ballast water during international voyages. The Convention also makes clear that contracting parties are to apply the requirements of the Convention as necessary to ensure that no more favourable treatment is given to ships flying the flag of no signatory parties.
There are limited exceptions to the Convention including those for:
Requirements - documentation
As of the implementation date, all ships that fall under the Convention are required to carry certain documentation and comply with the applicable ballast water management standard, namely either the ballast water exchange (regulation D-1) or the performance (regulation D-2) standard.
In terms of documentation, ships are required to carry:
Requirements – ballast water management standards
As of the implementation date, all ships are required to comply with the exchange standard (D-1) and new ships with the performance standard (D-2), the latter usually requiring an approved ballast water management system to be fitted. There is a staged move for ships towards the D-2 standard with the implementation timeline as provided under the Convention (Regulation B-3) and subsequently amended by meetings of the Marine Environment Protection Committee (MEPC) by reference to the ship’s International Oil Pollution Prevention Certificate (IOPPC).
This standard requires ships to exchange their ballast water in the open seas to reduce the risk of introducing potentially harmful aquatic organisms to the new environment during the operation. According to the Convention, ships performing ballast water exchange in accordance with Regulation D-1 are to undertake this with an efficiency of at least 95% volumetric exchange of ballast water being exchanged in the open seas.
To meet that standard, whenever possible, a ship should conduct such ballast water exchange at least 200 nautical miles from the nearest land and in water at least 200 m in depth. If that is not possible, such exchange is to be undertaken as far from the nearest land as possible, and in all cases at least 50 nautical miles from the nearest land and in water at least 200 m in depth.
The Convention makes clear that a ship should not be required to deviate from its intended voyage, or delay the voyage, in order to comply with the above requirements.
When the above requirements are not met, the relevant port state may designate areas, in consultation with adjacent or other states, as appropriate, where a ship may conduct ballast water exchange.
The Convention also makes clear that compliance with the above is not required if the master reasonably decides that such exchange would threaten the safety or stability of the ship, its crew or its passengers because of adverse weather, ship design or stress, equipment failure or any other extraordinary condition.
This standard specifies the maximum amount of viable organisms allowed to be discharged. More specifically, ships conducting ballast water management in accordance with this regulation shall discharge:
and the discharge of the indicator microbes shall be:
In order to comply with the D-2 standard most vessels will be required to have a suitable ballast water management system, which will either be installed at the time of the vessel’s construction or be retrofitted. A system installed to meet the D-2 standard must be safe in terms of the ship, its equipment and the crew and also approved in accordance with Regulation D-3 by the relevant flag state.
MEPC 72 in April 2018 adopted the IMO Code for Approval of Ballast Water Management Systems (Code) which revokes the 2016 Guidelines for Approval of Ballast Water Management Systems (Guidelines) previously adopted, even though the contents of the Guidelines will become mandatory through the Code when it comes into force on 13 October 2019. According to MEPC 72’s resolution, ballast water management systems approved not later than 28 October 2018, taking into account the Guidelines, may be installed on board ships before 28 October 2020; after that date any installation should comply with the Code.
More details regarding the Convention’s implementation timeline, actions that the port state control authorities can take in case of breach and considerations for installing a suitable ballast water management system can be found in part two here.
About Chris Primikiris
Mr Primikiris has experience in contentious shipping, trade and marine insurance matters. He has recently advised clients in making their charterparties 2020 compliant and on the sulphur fuel cap implications. Other cases have involved fire and explosions, freight and demurrage disputes, shortlanded and damaged cargo, insurance coverage issues and a variety of disputes under charterparties and bills of lading. Mr Primikiris has been involved in handling and preparing cases before the High Court and in arbitration proceedings, advising a wide range of commercial clients including owners, charterers, insurers and protection and indemnity clubs.
This article was originally featured in the Hill Dickinson LLP website and it and other shipping-related articles can be found here.