Gard News 207, August/October 2012
Law 4037/2012 has recently been passed in Greece, implementing Directive 2005/35 EC (on ship-source pollution and on the introduction of penalties for infringements) and Council Framework Decision 2005/667JHA.
Scope of application
Law 4037/2012 deals with the discharge by ocean-going vessels of the substances referred to in Annex I and II of MARPOL (oil and noxious liquid substances) in the following geographical areas:
- internal waters and the territorial sea of any EU member state;
- straits used for navigation subject to the regime of transit passage over which any EU member state exercises jurisdiction;
- the exclusive economic zone of any EU member state;
- the high seas.
Any discharge, wilful or not, operational or accidental, is considered an infringement of the law and results in the imposition of penalties, except if it is permissible under the following MARPOL Regulations:
- 15 of Annex I, regulating operational discharges of oil or oily mixtures from any ship;
- 34 of Annex I, regulating discharge of oil or oily mixtures from the cargo tanks of a tanker; and
- 13 of Annex II, regulating the discharge of noxious liquid substances.
Article 4 of the new law incorporates part of the exceptions of MARPOL. Specifically, the discharge of oil or liquid noxious substances is not considered an infringement if it was necessary for the purpose of securing the safety of the ship or saving life at sea, or when a discharge is being done with the approval of the administration (both flag and territory, if any) for the purpose of combating pollution (Regulations 4.1, 4.3 of Annex I and 3.1.1, 3.1.3 of Annex II).
For all of the above areas, except internal and territorial seas of an EU member state, a discharge is not considered an infringement if it was caused due to damage to the ship or her equipment, provided all reasonable precautions have been taken after the occurrence of the damage, or discovery of the discharge, for the purpose of preventing or minimising the discharge, and under the condition that the owner or Master did not act with intent to cause the damage, or recklessly and with the knowledge that the damage would probably result (Regulations 4.2 of Annex I and 3.1.2 of Annex II).
From the above it would appear that accidental pollution in internal waters or territorial sea of an EU member state is not exempted, contrary to MARPOL Regulations.
Law 4037/2012 provides severe penalties of imprisonment and fines not only to crew members but also to any other person that has contributed to a punishable discharge, either wilfully or by gross negligence, without exempting accidental pollution (as provided in MARPOL).
The court may impose the criminal penalties (reduced as per the provisions of the Greek Penal Code) against any person whatsoever, in addition to the actual perpetrator or accomplice, who may have contributed in any way in the wilful or negligent discharges that are punishable. This may result in the possibility of indictment of any person from the ship management office (such as directors or DPA), the charterers, cargo owners, etc.
The new law established criminal penalties in the case of wilful discharges as follows: a) Imprisonment from five to 10 years and pecuniary penalty from EUR 3,000 to EUR 300,000, in cases of significant pollution that caused risk to human life, or risk of severe bodily damage, or of wide environmental disturbance or disaster;
b) Imprisonment from one to five years and pecuniary penalty from EUR 1,500 to EUR 50,000 in all other single pollution incidents; and
c) Imprisonment from six months to five years and pecuniary penalty between EUR 1,000 to EUR 15,000 in case of repeated minor discharges which in conjunction result in the deterioration in the quality of sea water.
The new law established criminal penalties in the case of discharges due to gross negligence or recklessness as follows:
a) Imprisonment from six months to five years and pecuniary penalty from EUR 1,000 to EUR 15,000, in cases of significant pollution that causes risk to human life, or risk of severe bodily damage, or of wide environmental disturbance or disaster;
b) Imprisonment from three months to five years and pecuniary penalty from EUR 200 to EUR 3,000 in all other single pollution incidents and also in case of repeated minor discharges which in conjunction result in the deterioration in the quality of sea water.
However, if the party responsible for a negligent discharge significantly minimises the pollution or contributes to that effect by promptly notifying the authorities, the above penalties may be reduced or even dismissed altogether.
Discharges caused by simple negligence (i.e., not gross negligence or recklessness) are not punishable under Law 4037/2012.
It should be noted that the above penalties of imprisonment are provided by Law 4037/2012 irrespective of the geographical place of the discharge and of the flag of the offending vessel, which seems to contradict the provisions of Article 230 of UNCLOS (United Nations Convention on the Law of the Sea of 1982) providing that monetary penalties may only be imposed with respect to violations of national laws and regulations, or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment, committed by foreign-flagged vessels, except in case of a wilful and serious act of pollution committed within the territorial sea of a member state.
In addition to the above criminal penalties, an administrative fine of up to EUR 60,000 may be imposed. In case of a serious incident the fine may vary from EUR 60,000 to EUR 1,200,000. The authorities may prohibit the sailing of the liable vessel until the fine is paid or until the submission of a letter of guarantee from a bank operating in Greece.
Liability of legal entities
Legal entities may face a fine of up to EUR 500,000 for any of the offences, which are punishable under the law, committed for their benefit:
- by any person acting, either individually or as part of a body of the legal entity, who has power of representation or the authority to take decisions for the legal entity, or an authority to exercise control within such legal entity; or
- by any person under the control of the legal entity when the offence was committed due to lack of supervision by any of the persons of the legal entity who have power of representation, authority of decision making and exercise of control.
Entry into force
The law came into force on 30th January 2012.
Law 4037/2012 provides severe penalties of imprisonment not only to crew members but also to any other person that has contributed to a punishable discharge, thereby increasing criminalisation of the shipping industry and conflicting with Article 230 of UNCLOS 1982 as regards to foreign-flagged vessels.
According to Greek precedents, European Union legislation (and implementing laws) prevails over any sub-constitutional legislation. Therefore, if a case were brought before a Greek court chances are that the provisions of Law 4037/2012 would be found to prevail over the provisions of MARPOL and UNCLOS mentioned above.
We are grateful to KGDI Law Firm, Kyriakides Georgopoulos & Daniolos Issaias, Greece, for the above information.
Any comments on this article can be e-mailed to the Gard News Editorial Team.