Law firm Hill Dickinson’s senior associate Chris Primikiris presents the second of a two-part look at the legal implications of the Ballast Water Management Convention
The International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 (Convention) came into force on 8 September 2017 (Implementation Date). 8 September 2019 is the next important date in the Convention’s implementation timeline requiring more of the existing fleet to comply with the more stringent D-2 standard under the Convention.
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). Existing ships may choose to comply with the D-2 standard earlier, but they are not obliged to do so until the relevant mandatory compliance date for the ship in question.
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). In brief, this means that ships constructed on or after the implementation date must comply with the D-2 standard on delivery, whereas existing ships must comply by the first IOPPC renewal after 8 September 2019.
The Convention defines ‘constructed’ by reference to a ship to include a stage of construction where either:
For existing ships, in circumstances where the IOPPC renewal survey is between the implementation date and 8 September 2019, if the previous IOPPC renewal survey was:
A ship undergoing its IOPPC renewal survey after 8 September 2019 will need to meet the D-2 standard by that renewal survey.
If the vessel does not have an IOPPC renewal survey, the date of compliance with the D-2 standard will be determined by the vessel’s flag state, though there is a longstop date of 8 September 2024 by when compliance will be required.
In terms of enforcement, this is achieved by inspections by the port or flag state as applicable. Article 9 of the Convention provides that a ship to which the Convention applies may be subject to inspection in any port or offshore terminal of another contracting party with any such inspection being limited to:
However, where a ship does not carry a valid certificate; there are clear grounds for believing that the condition of the ship or its equipment does not correspond substantially with the particulars of the certificate; or the master or the crew are not familiar with essential ballast water management shipboard procedures, a detailed inspection may be carried out. The port state control officers may then take necessary steps to ensure that the ship does not discharge ballast water until it can do so without presenting a threat of harm to the environment, human health, property or resources.
Although Article 9 indicates that ballast water sampling can be undertaken during an initial inspection, the Guidelines for port state control under the BWMC adopted by IMO MEPC 67 by way of resolution MEPC.252(67) (Guidelines) contain detailed procedures regarding port state control, envisaging a four-stage inspection regime with sampling taking place at a third stage where an ’initial inspection’ or a ’more detailed inspection’ were not deemed satisfactory.
If a ship has violated the Convention, the port state control officers may take steps to warn, detain or exclude the ship or grant such a ship permission to leave to discharge ballast water elsewhere or seek repairs. The officers are to use professional judgement to determine whether to detain the ship until any noted deficiencies are corrected, or to permit a ship to sail with deficiencies that do not pose an unreasonable threat of harm to the marine environment, human health, property or resources.
The Guidelines contain a non-exhaustive list of deficiencies, which are considered to be of such a serious nature that they may warrant the detention of a ship. These include the absence of any of the Convention documentation (ballast water management plan, ballast water record book and international ballast water management certificate (where applicable)), no nomination of a designated officer or result of non-compliance by sampling. Fines may also be imposed.
Considerations when installing ballast water management systems
With 8 September 2019 fast approaching requiring more of the existing fleet to comply with the D-2 standard, presumably shipowners are already underway with their retrofitting planning. Shipowners will have approached suitable marine engineering firms regarding the installation of the best suited ballast water management systems for their vessel(s) and also liaised with Class to ensure there are no issues or limitations with their choices.
Apart from the retrofitting engineering firms’ expertise, other considerations in choosing the most suitable system include:
About Chris Primikiris
Chris 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. Chris 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.