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Every vessel needs bunkers. Some are run by fuel oil, others by gas oil, and some need both for their machinery. In addition, vessels need lubricating oils and hydraulic oils. The oils are normally taken on from barges or shore connections through hoses. Hydraulic oils or lubricating oils may be taken on in drums.

Seamen know these things. They know how to plan the bunkering operation, how to follow the routines set out in the vessel's safety programme. They know how to calculate their need for bunkers and how to order. They know how to hook up the bunker barge and how to connect the hoses to their manifolds. And they know how to monitor the bunkering operations.

And yet, bunkering spills do happen. Over the last 20 months, 350 pollution incidents have been registered in the Gard system. Many of these cases (165) have been reported merely for precautionary reasons and are not expected to cost anything. Of the remaining cases, the majority is expected to cost Gard between USD 100 and USD 100,000 each. There are also a few cases expected to cost more than USD 100,000 each, of which three are expected to cost more than USD 1 million. The most expensive will cost somewhere around USD 25 million.

It is true that not all of these incidents involve bunker spills. However, the majority of the 165 no-cost cases involve minor spills during bunkering operations - spills so miniscule that they would not, some years ago, have been reported to Gard at all. It is also true that the majority of the remaining cases relates to bunker spills one way or the other and this article will analyse some of these events to provide a picture of what happens, and how a mishap is treated in different countries around the globe.

United States
The vessel was bunkering in Oregon. It appeared that the engineer in charge of the operation had unscrewed an ullage pipe cover to be able to check the quantity in the particular tank. Unfortunately, as often happens, a "blurp" forced a small quantity of oil to come out of the hole, and five litres reached the sea. The costs paid by Gard reached USD 3,000, in addition to what the member had to pay under the agreed deductible. How could this have been avoided? First of all, were the scuppers plugged? No. So, whose fault is this? Is there a routine on the vessel for plugging the scuppers when bunkering? Somebody must be responsible for that job and it should be set out in the safety programme. It is essential that the responsibility for doing a job be allocated to a specific individual - not in order to be able to blame somebody when something goes wrong, but in order to make sure that the job gets done. Could the "blurp" have been avoided? A "blurp" is most often caused by an air pocket being trapped between the beams underneath the tanktop depending on the trim of the vessel. It is essential that the person in charge is aware of what trim the vessel has, and what can happen in certain circumstances. Hence, it is better to stop the operation one or two centimetres short and avoid the very expensive oil being lost overboard. [5litres = USD 3,000; i.e., 1 ton = about USD 750,000]. Another way of trying to avoid the oil slipping overboard is of course to have absorbent material ready near to every opening from which oil could possibly escape - not only by the manifold.

Another vessel was bunkering in Texas. In order to be able to follow the operation a manhole had been taken off. Despite such a precaution, the tank was filled faster than expected and 1,000 litres were reported to have reached the surrounding waters. The product was heavy fuel oil, and the vessel's response plan under OPA 90 was activated. Everything went well in the end, but the operation, including QI (Qualified Individual), OSM (Oil Spill Manager), oil spill response company, US Coast Guard, etc., cost USD 180,000. How could this have been avoided? Obviously, by closer monitoring of the operation. The person responsible for the operation should not be distracted by having to do other things simultaneously.

What about the bunkering speed? Quite often it is said that nobody monitored an operation from the shoreside, or that shoreside monitoring was sloppy, and that the speed was excessive compared to what had been agreed. How can that be proved afterwards? Is there evidence that the vessel had told shore personnel to slow down? It has to be remembered that it is the spiller who is the responsible person and who shall have to pay in the first place. Under OPA 90 the spiller can only avoid responsibility if he can show, by a preponderance of evidence, that somebody else, not being at all related to him, was the sole cause of the oil discharge.

None of the cases mentioned above involved criminal investigation of the responsible crewmember or company. However, nowadays it is quite likely that the Coast Guard will look closely into the vessel's routines and safety programmes whenever a spill occurs. If they find that something is not in accordance with rules and regulations, e.g., MARPOL 73/78, the FBI may be informed about the case and start a criminal investigation. This means that criminal lawyers may have to be appointed to defend the master, chief engineer and others, and, if non-compliance is grave enough, the shipowning or operating company. At this stage Gard and its local correspondents have to step aside because of the attorney/client privilege aspect.

A vessel was transferring oil internally into the settling tank. Unfortunately the tank overflowed and some oil found its way into the sea through the airpipe. Whenever there is a pollution incident in Japan the Maritime Police will start investigating to find the culprit of the mishap. Such investigation may take some hours, but it may also take days, and in the meantime the vessel is not allowed to leave the port. After having interrogated the chief engineer and other engineers it was found that the second engineer was the wrongdoer. The investigation took two days, which meant that the operators of the liner vessel involved, being on a tight schedule, had all sorts of problems with their customers. Criminal proceedings started and bail of USD 10,000 had to be put up for the second engineer, with a promise that he should come back to Japan for trial at a later date. If he does not show up when called upon to do so, the bail will be cashed in favour of the Japanese authorities.

The spill in this case was miniscule. In other cases clean-up costs will be added to the bail costs.

Heavy fuel oil had leaked into the tunnel of a vessel, and the tunnel was emptied overboard in Ukrainian waters. An unspecified quantity of oil escaped. The system in Ukraine is to impose a fine and any clean-up costs on the vessel. A table is used to assess the amount of the fine. In this case, since the quantity discharged was unknown, USD 3.1 million had to be paid.

Of course, the original reason for this mishap was a structural fault allowing the oil to enter the tunnel. But who decided to empty the tunnel overboard? Could that have been done otherwise?

After having touched the dock, a hole appeared in a bunker tank of a vessel. Approximately 27 MT escaped into the sea. The cost of clean-up reached USD 465,000.

Another case involved a fractured ballast line passing through a bunker tank. In this case the quantity of oil was unspecified but the mishap was detected and stopped quite rapidly. The cost of clean-up reached USD 33,000.

Singapore is quite effective when it comes to combating spills. A lot of money has been put into their contingency plans and there is plenty of equipment which can be used in the area. Still, with all the islands and the sea currents in the Straits, clean-up operations of some magnitude do not come cheap. In addition, the Prevention of Pollution of the Sea Act (PPSA) imposes criminal liability for, amongst other things, the following:
- discharge of any oil or oily mixture from any ship into Singapore waters;
- failure to report any actual or probable discharge of any oil or oily mixture into Singapore waters; and
- failure to properly maintain oil record books on board a ship.

It should be noted that the Singapore High Court has held that the prohibition on discharge of oil and oily mixtures from ships is a strict liability offence. In other words, the offence is committed the moment there is a discharge of any oil or oily mixture irrespective of whether there is fault, and the state of mind of the offender is irrelevant. Only certain limited defences are available.

These are some of the penalties under the PPSA:
- for discharge of any oil or oily mixture from a ship, a fine of between SGD 1,000 and SGD 1 million, or imprisonment not exceeding two years, or both;
- for failure to report any actual or probable discharge of any oil or oily mixture, a fine not exceeding SGD 5,000;
- for failure to properly maintain oil record books, fines ranging between SGD 5,000 and SGD 10,000, or imprisonment not exceeding 12 months, or both.

While imprisonment for an offence under the PPSA is rare, in a recent case involving a VLCC, the master was sentenced to three months imprisonment and fined SGD 400,000 for the discharge of oil and oily mixtures from the ship. On another charge of failing to properly maintain the oil record book, the master was imprisoned for 10 months.

Imprisonment is not covered by the P&I Club. Neither is a fine for having contravened Marpol or other regulations or for having committed a criminal act.

During bunkering, an unspecified quantity of heavy fuel oil escaped through a manifold valve which had not been checked. A fine for USD 45,000, based on the size of the vessel, was imposed.

One wonders how it is possible to forget to check that other manifold valves are closed. However, this case is one of many involving just such a cause of pollution. Are routines and safety programmes unsatisfactory, or are the individuals in charge reckless?

The human element

Fines are only covered if the escape or discharge of oil is accidental.
 The reader will have noted that in the cases mentioned above the human element has been of relevance. It is a fact that very often the human element is the cause of mishaps. So what is this "human element"? It usually seems to consist of the individual who does not do what he should under certain circumstances. Rather than checking the ullage of the tank he goes aft to have a cigarette. Rather than checking the safety programme he feels he is so experienced he knows how to handle this operation. Rather than making sure that the scuppers are plugged or the manifold valve on the other side of the vessel is closed, he feels that somebody else should be responsible for those things so he does not bother. Rather than showing interest in doing a good job, he feels that the master or the chief engineer does not appreciate what he does anyway, so why bother?

There are so many excuses for behaving carelessly. Not all of them can be mentioned here. But what can be done to try and avoid mishaps caused by sloppy behaviour? Should one have the careless individual replaced? Is there any guarantee that the replacement will not behave in the same way after a while? There appears to be no easy answer to these questions. But it seems that companies that have closer ties to their crew members, that offer them the option to come back to the same vessel or other company vessels after a vacation period, have less mishaps than companies that do not. But people are different and what is good for one may not be good for another. Still, making the crew member feel he is part of the company in which he serves can only have a positive effect.

The cover
The cover provided is set out in Rule 38.1 of Assuranceforeningen Gard's 2001 Statutes and Rules:
"Rule 38 Pollution
1.The Association shall cover:
a.liabilities, costs and expenses (excluding fines) arising in consequence of the discharge or escape from the Ship of oil or any other substance or the threat of such discharge or escape."

It should be noted that the rule covers pollution caused both by oil and other substances. Hence, it is a very wide cover. The cover responds equally where oil is spilt during bunkering or a chemical cargo overflows from the tank during loading. It should also be noted that the substance must have been discharged or have escaped from the ship. This means that the cost of cleaning up the vessel's deck after an overflow is not recoverable.

The rule says that "liabilities, costs and expenses" are covered. Liabilities in this context mean legal liabilities.

Fines are not covered under Rule 38.1, but under Rule 47, which will be considered later.

To give a picture of actual liabilities which are covered under Rule 38.1, let us examine a specific section of OPA 90:
"Sec 1002. Elements of Liability
(a) In General: (…) each responsible party for a vessel (…) from which oil is discharged, (…) is liable for the removal costs and damages specified in subsection (b) that result from such incident.
(b) Covered Removal Costs and Damages
(1) Removal Costs - The removal costs referred to in subsection (a) are
(A) all removal costs incurred by the United States, a State, or an Indian Tribe (…), and
(B) any removal costs incurred by any person for acts taken by the person which are consistent with the National Contingency Plan. (…)"

Removal costs are costs incurred in removing the oil from the sea or land, marsh areas, soiled boats, beaches, docks, and so on. They include the cost of boats and people, safety equipment for people and other equipment, storage and hauling of waste to a dump yard or place for incineration, including the cost of getting a permit as a waste generator to haul the waste to the site of destruction or storage.
"(…) (2) Damages - The damages referred to in subsection (a) are the following:
(A) Natural Resources - Damages for injury to, destruction of, loss of, or loss of use of, natural resources, including the reasonable costs of assessing the damage, which shall be recoverable by a United States trustee, a State trustee, an Indian tribe trustee, or a foreign trustee."

This paragraph is of vital importance whenever there is a spill of some significance in the US. It should be noted that those who can formulate a claim under this paragraph are the federal or state authorities, or Indian tribes. It should also be noted that "reasonable" costs of assessing the damage are recoverable. Unfortunately, it does not say who should decide on what are "reasonable" costs.

Natural resources in this context are for instance birds, sea otters and fish. One of the intricate points from the Club's perspective is the "loss of use of" aspect. In one case some years ago the shipowner was found liable to the trustees for approximately USD 12million because people were not allowed to visit a beach for about 2 weeks while clean-up was being undertaken there.

There are further elements of liability described in the OPA 90, but these are beyond the scope of this article. However, the US is not the only country imposing strict liability on an offender. Singapore is mentioned above, but most countries with interest in shipping have the same attitude, although not, perhaps, to the same extent as the US.

The second Rule of particular interest in respect of pollution is Rule 47.1.c:
"Rule 47 Fines
1.The Association shall cover fines or other penalties imposed upon a Member (or imposed upon a third party whom the Member is legally obliged to reimburse or whom the Member reimburses with the agreement of the Association) by any court, tribunal or other authority of competent jurisdiction for or in respect of any of the following:
(…) c. the accidental escape or discharge of oil or any other substance or threat thereof, provided that the Member is insured for pollution liability by the Association under Rule 38, and subject to the applicable limit of liability under the P&I entry in respect of oil pollution risk."

It should be noted that not only fines imposed upon the member as shipowner are covered under this rule. If the member is legally obliged to reimburse a crewmember, for instance, for a fine imposed on that person, it may also be covered. Where the member is not legally liable to reimburse the fine, but wishes to do so for other reasons, he could still apply for cover. It is then up to the discretion of the Club whether to provide cover or not.

It should also be noted that for a fine to be covered under Rule 47 there must have been an accidental escape. Rule 38 mentions nothing about the escape having to be accidental. So it could happen that even though the Club would cover clean-up and other costs related to a spill, cover would not be provided for a fine if the escape had not been accidental. From a practical point of view, the provision in Rule 47 is there in order to exclude fines where a deliberate action from those on board has caused a pollution incident. It does not matter whether the fine is imposed upon the vessel or any of the crew responsible for the deliberate action. This means that a fine imposed because of a deliberate and unauthorised pumping of bunkers or bilge water overboard would not be covered. On the other hand, a fine imposed upon the vessel or a crewmember due to an accidental over-bunkering would be covered.

Civil fines do not create problems for the cover provided the above requirements are fulfilled. Criminal fines, however, do create problems. Although it might seem from a shipowner's or a seaman's perspective to be totally insane to be criminally charged because, for instance, some oil gets in the water after an incident, many countries today do have legislation under which the individual will be charged. The US and Singapore are examples mentioned before. Fines (or imprisonment) in such cases are not covered under the Rule set out above.

- Use your brain when you are in charge of or part of a bunkering operation.
- Know what you are doing.
- Check valves once more, even if it is not your responsibility.
- Check that scuppers and absorbent material are in place.
- Make sure that there is good communication with the bunker supplier.
- Make sure the bunker supplier is going to deliver the quantity you ordered.
- Remember that a fine may cost you dearly.
- Remember that your family may not be able to visit you in prison.

Gard News is published quarterly by Gard Services AS, Arendal, Norway.