An article in Gard News issue No. 142 (July 1996) advised readers that the problem of "pollution" by unwanted aquatic organisms carried in ballast water was assuming much greater importance and referred specifically to action being taken by the International Maritime Organization (IMO) and by the US government. In the two years since that article, significant developments have occurred.
In November 1997, the IMO added an annex to Resolution A.868 (20) of MARPOL 1973/78. The annex incorporates the Guidelines for the Control and Management of Ship's Ballast Water to minimise transfer of harmful aquatic organisms and pathogens, which were drawn up by a team of experts within the IMO and outside. The Resolution recommends that all vessels carry a Ballast Management Plan, that all crew members are properly trained, that an accurate record of ballast transfers is kept and that port states should provide adequate reception facilities and relevant information concerning the requirements of that particular state.
A working group has been set up by the IMO in order to draw up new regulations, including a Code for Ballast Water Management. These regulations are currently being discussed within the IMO. The main issue seems to be how best these regulations should be introduced. There are apparently three options under consideration:
- developing a new Protocol to MARPOL 73/78;
- adding a new annex to amend MARPOL 73/78 with a view to considering the adoption of the regulations in the year 2000;
- holding a conference in 2000 or 2001 to discuss adopting a new convention on ballast water management.
However, recent reports indicate that lack of funding within the IMO may mean that this conference will have to be postponed. Whatever happens, it seems most unlikely that any significant decision will be taken before 2000 at the earliest and at present, the IMO guidelines are voluntary and not legally binding. This has prompted several countries, who perceive that some of their ports and harbours are more affected by the problem than most, to take unilateral, domestic action. One example is the port of Vancouver, which last year introduced a mandatory requirement of mid-ocean ballast exchange for all vessels trading to the port. The port of Oakland, California, has recently enacted similar rules. In both cases, vessels calling at the port are required to exchange ballast water in mid-ocean, although the exchange does not have to take place if conditions at sea would make the exchange hazardous to the vessel and/or crew.
Although Australia has not awaited the outcome of the discussions within the IMO, it has at least used the IMO guidelines as a starting point, presumably on the basis that, if or when such guidelines become part of international law, Australia will already have much of the necessary legislation in place.
In August 1998, the Australian Quarantine and Inspection Service (AQIS) implemented the Australian Ballast Water Management Guidelines, which are new ballast water management procedures based on the IMO's Resolution 868. These procedures concentrate on the monitoring and recording of ballast water exchanges and require a standard form to be completed by all vessels planning to discharge ballast in Australian territorial waters. These procedures were updated as from 1st January 1999 and expressly state that the guidelines should be read in accordance with the IMO Guidelines mentioned above. It should be noted that completion of the AQIS Ballast Water Reporting Form is now mandatory (Section 7.1). The latest guidelines also provide for mandatory access to points for sampling ballast water or sediment (Section 6.4).
Probably the most important sections of the guidelines are 6, "Procedures for ships", 7, "Recording and reporting procedures" and 8, "Enforcement and monitoring by AQIS". Section 7.1 makes it clear that ships which do not complete the required form will not be given quarantine clearance and will face an additional cost as a result of having to complete the form in the presence of an AQIS officer. Section 8.1 states that the guidelines apply "(
) to all ships within Australian waters unless otherwise indicated by AQIS". Perhaps most important of all, Section 8.2 says that the guidelines will "(
) be ineffective if compliance is dependent upon the acceptance of operational measures that put a ship or its crew at risk. Australia does not require any action of the Master which imperils the lives of seafarers or the safety of the ship".
Given its track record of declining to ratify international conventions, it is not surprising that, like Australia, the US has decided not to await the outcome of the discussions within the IMO. It is also not surprising, in the light of its reputation for championing environmental issues, that, although there are a number of localities in the US which have been affected by certain alien, non-indigenous species, the greatest pressure for action seems to be coming from within the state of California.
Probably the most well-known "import" has been the European zebra mussel, which was introduced to the Great Lakes in ships' ballast water. One recent US estimate put the overall cost of the introduction of this species at USD 5 billion. Other invaders include the Chinese mitten crab. This has found a new home in San Francisco Bay, which as been described by the US Fish and Wildlife Service as "the most invaded aquatic ecosystem in North America". President Clinton has set up a council of scientists and civil servants to combat the alien species which have found a new home in the US and which, according to a biologist appointed to this council, "(
) are the stealth destroyers of the American environment". One Administration official called the President's action "the X-files executive order".
Although not all of these alien species travel in ships' ballast water, a number of them do and the scale of the problem is undoubtedly significant. Prevention is always better than cure and especially so in this case, as many of these new species are proving difficult and expensive to dislodge. What, then, is the US in general and California in particular doing to try to resolve the problem?
In October 1996, the National Invasive Species Act was enacted by Congress and signed by the President. Subtitle B, "Prevention of unintentional introductions of non-indigenous aquatic species", distinguishes between the Great Lakes and the rest of the US. For the Great Lakes, the Act says that, not later than six months after its enactment (i.e., by April 1997), "(
) the Secretary shall issue voluntary guidelines to prevent the introduction and spread of aquatic nuisance species into the Great Lakes through the exchange of ballast water of vessels prior to entering those waters" (our emphasis). However, not later than two years after the enactment of the Act, the Secretary shall issue "regulations", which will apply to "(
) all vessels equipped with ballast water tanks that enter a United States port on the Great Lakes after operating on the waters beyond the exclusive economic zone". For the US as a whole, voluntary guidelines will be issued not later than one year after the date of enactment. These guidelines will apply to "(
) all vessels equipped with ballast water tanks that operate in waters of the United States."
This Act has been updated by an Interim Rule recently published by the US Coast Guard. This Rule took effect on 1st July this year. It amends existing regulations for the Great Lakes, establishes voluntary ballast water management guidelines for all other US waters and sets up mandatory reporting for nearly all vessels entering the US.
Unfortunately, although the Rule expressly states that the Coast Guard wishes "to avoid potential conflicts and duplication (
)", it goes on to say that the "(
) regulation isn't intended to pre-empt any State, regional or local efforts that exceed but do not conflict with the standards set forth in this Rule." If recent history is anything to go by, a multiplicity of such "efforts" could well lead to the "conflicts and duplication" which the Coast Guard says it wishes to avoid.
The Association will answer questions relating to the Act and the Rule and will provide copies on request. For the purpose of this article, it is sufficient to say that, for the Great Lakes in particular and the US in general, vessels can be required to:
- exchange ballast water outside the exclusive economic zone (EEZ) prior to entry into port;
- exchange ballast in other areas where no "threat of infestation or spread of aquatic nuisance species is posed";
- use "environmentally sound alternative ballast water management methods";
- make provisions for sampling procedures to ensure compliance.
The national guidelines also provide for records of ballast exchanges to be kept by vessels and made available for inspection to ensure compliance. A civil penalty amounting to not more than USD 25,000 can be imposed for a breach of the regulations (not the voluntary programme). Each day of a continuing violation represents a separate penalty. A criminal penalty can be imposed for a "knowing" breach. Certain exceptions can apply to these penalties. If the Coast Guard finds that the voluntary guidelines are not effective or adequate, it must introduce mandatory regulations.
According to a recent study by a biologist at the San Francisco Estuary Institute, there are "at least" 234 species of foreign plants, crabs, worms, fish and other animals in San Francisco Bay. Not all of these have been introduced to the bay through ballast water. Nevertheless, in February 1999, a bill was put forward in the Californian state legislature which, if enacted, will ban the discharge of ballast water into state waters unless the vessel concerned has a ballast water discharge permit. The discharge of ballast water without a permit will constitute a crime. The latest indications are that the legislation is likely to be passed.
The main features of the bill are:
- From 1st April 2000, a Master must submit a ballast water report when entering state waters.
- From 31st December 2002, no ballast water that contains "live exotic ballast water organisms" may be discharge into state waters without a special permit. A Master must request authority to discharge ballast water.
- A permit will be issued if permission is granted (in certain limited circumstances).
- There is an exception based on the safety of the vessel and crew.
- After 1st January 2003, terminals are required to start building ballast water treatment plants.
- The California Water Resources Control Board (the Board) is empowered to set down requirements for ballast water exchanges or other environmentally sound methods of ballast water treatment.
- The Board is required to set up a programme monitoring the discharge or exchange of ballast water.
- Ballast water discharges are included in the general water pollution liability provisions of the California Water Code.
Civil and criminal fines can be levied for each violation. In addition, prison terms ranging from up to one year (for negligent discharges) to three years (for knowing discharges) to 15 years (for discharges involving imminent danger of death or serious bodily injury) can be imposed. It is currently unclear whether "death or serious bodily injury" is restricted to humans.
Perhaps unusually for the shipping industry, the problems caused by non-indigenous aquatic organisms appear to be recognised by virtually all interested parties. The difficulty arises when considering the question of how best to prevent or control the movement of such species. The article in Gard News issue No. 142 commented on the practical problems faced by shipowners and operators in exchanging ballast in mid-ocean and concern amongst shipowners remains high that, largely for political reasons, they will be left on their own to resolve a problem that affects people and places in many parts of the world, many of whom have little or no connection with shipping. For reasons of safety, the problem can not always be dealt with by exchanging ballast in mid-ocean and this is recognised by much of the existing and pending legislation. Unfortunately, the proliferation of local or national legislation is likely to fragment action on what is an international problem requiring international answers. The result may well be that shipowners and operators have to come to terms with yet another patchwork quilt of state and national legislation, requiring more money to be spent on new facilities, planning and training. All of this in a market where freight rates are generally abysmal.
There is also no agreement as to the most appropriate and effective way of preventing the movement and survival of non-indigenous aquatic organisms. No magical cure currently exists. The main focus has been on the mid-ocean exchange of ballast water. Cynics would suggest that this is because the entire responsibility and cost of the exchange are placed on a far away and probably unknown shipowner, rather than on the area, state or country which stands to gain most from such exchange. Other methods, both on board and ashore, have, however, been proposed.
Apart from mid-ocean exchange, the on board methods are either retention or minimal release of ballast water, which are impractical and unsafe for many vessels, or one or more of the following:
- Irradiation by ultra-violet light;
None of these has yet been proven to work satisfactorily, although research continues. One recent report stated that a Canadian-Norwegian partnership claims to have developed a new method of treating ballast water so that it can be discharged without the risk of unwanted aquatic organisms being present. The method used is to separate water from solids at high speed and to use ultra-violet rays to "sanitise" the water. The same procedure has reportedly been demonstrated to the IMO.
Treatment ashore of "contaminated" ballast water, which many have suggested is perhaps the safest method, can only take place when reception facilities are provided. Cost is an important factor here - who should pay the bill?
How does this affect shipowners in terms of the P&I cover?
MARPOL is a code of practice dealing largely with operational and technical measures for avoiding or minimising pollution. It does not deal with liabilities or penalties. These are matters for state and/or national legislation.
A fine imposed for a breach of MARPOL, or any amendment thereof, will, pursuant to Rule 47 (2) (vi) of the Association's Statutes and Rules, be excluded from cover. However, shipowners may well have to face third party claims for "pollution" and clean-up costs in countries where relevant national legislation has been enacted. The potential cost of removal or remedial measures in a state such as California is significant. In general terms, cover is likely to be available under Rules 38 and 39, although, as always, each case will be assessed on its own merits. Fines may also be imposed, both civil and possibly criminal. If any guidelines can be drawn from the way in which such matters are handled by the local, state and federal authorities in the US in the event of an oil spill, the future for shipowners and their insurers does not look hopeful.
For those Members unfortunate enough to suffer such penalties, civil fines will be considered in accordance with the Statutes and Rules and the terms of entry. By definition, cover is not available for criminal fines.
All vessels obliged to comply with the ISM Code must have a Ballast Water Management Plan on board. IMO Resolution A868 (20) reflects this, but also goes further in recommending that all vessels carry a Ballast Water Management Plan. Disclosure of this plan, together with records of ballast water exchange, is certain to be required by the authorities in a number of countries, especially the US. A model Ballast Water Management Plan has been drafted by Intertanko, in co-operation with the International Chamber of Shipping.
The Association shall keep readers advised of further developments, especially in relation to the proposed legislation in California. Unfortunately owners are advised to expect tighter and tighter control on the discharge of ballast water and more and more severe penalties for non-compliance, except in limited circumstances. Owners should ensure that their records are properly maintained and up to date, but at the same time, must give the highest priority to the safety of the ship, her crew and her cargo.