Criminalisation

Developments in EU, Canada and other locations

INTERNATIONAL SALVAGE UNION

8 March 2006

Peter M. Swift

Spain rejects Mangouras appealPresentation to ISU 2004

Places of RefugePlaces of RefugeA Solution Waiting to be ImplementedA Solution Waiting to be Implemented Presentation to ISU 2004Presentation to ISU 2004

Erika II Package – December 2000Erika II Package – December 2000

Requires Each Member State to Draw up Requires Each Member State to Draw up Emergency Plans for Hosting Ships in Emergency Plans for Hosting Ships in Distress in Places of RefugeDistress in Places of Refuge

Port Reception FacilitiesPresentation to ISU 2004

An International Failure:- Inadequacy of Reception of Annex I wastes still an issue for Tanker Owners

- States turning to policing measures w/o first providing the solution (Mediterranean aerial surveillance, Baltic oil tagging) – must return to the source of the problem, not end of pipe solutions

A European Concern:Implementation of Directive not uniform – ports allowed to implement w/o direction from state leading to different interpretation of:

- Capability of ship to reach next port w/o need for discharging waste

- Fee systems increased beyond previous levels

- Over-regulation of facilities causing closures, e.g. Italy

Criminalisation

”Creeping”

Criminalisation is a

Concern for all in Shipping

Criminalisation

A two-fold concern:

Unfair treatment / human rights

and

Counterproductive nature of other measures

Criminalisation

Vision for Tanker Industry: to be recognised as ”responsible” and to be ”respected”

We have stated and stand by our ”Zero

Tolerance” for illegal acts We sympathise with the victims of shipping

accidents and support fully the provision of proper compensation

CriminalisationCriminal sanctions for ship-sourced pollution:

Industry objects to criminalising accidental pollution AND condemns illegal discharges

Need clarity in law AND consistency with international law

Penalties should be proportionate AND have parity with other similar offences (ashore)

Suspects must be treated fairly AND in accordance with basic human rights

States should comply with their obligations to provide reception facilities AND places of Refuge

Criminalisation

Unfair treatment and violation of human rights

Too many cases of unlawful detentions after shipping accidents

Welcome for the joint IMO/ILO Group on Fair Treatment of Seafarers

Too many other unjust practices – unjustified fines, denial of shore leave, prohibition of terminal access and more

CriminalisationCounterproductive consequences not recognised:

Destroys “no blame” cultures Discourages openness and frank reporting Curtails surveyors’ reports – detracts from ”good practice” Deters salvors in circumstances when we need them most Deflects focus for proper casualty investigation and denies

benefits of same Destroys and damages morale of seafarers and others Dissuades new recruits and accelerates departure of

experienced staff Drives responsible people and companies from the business

Is this what the legislators and society are seeking ?

Criminalisation

What is to be done ?

PLENTY !

CriminalisationWhat is being done ?

Controlling illegal discharges

Reception facilities: Industry-government forum (Industry, IMO and EMSA)

Industry Guidance on Use of Oily Water Separators and Completion of Oil Record Book

Preparing Guide for treatment of engine room wastes – including means to limit generation of waste, better management of waste, better design and sizing of equipment, (revisions to Marpol), and additional training

CriminalisationWhat is being done ?

Industry-wide efforts to:

Remove the threat of criminal sanctions for accidental discharges

& Maintain the Supremacy of International

Law

CriminalisationRemoval of the threat of criminal sanctions for accidental discharges

&Maintenance of Supremacy of international law

EU: Action in the High Court in London to test the validity of the 2005 EU Directive on Criminal Sanctions for Ship-Source Pollution and seeking a reference to the European Court of Justice – criminalises accidental pollution, conflicts with existing treaty law obligations under Marpol and UNCLOS, and fails to satisfy the principle of legal certainty

CANADA: Monitoring of Amendments to Migratory Birds and Environmental Protection Acts – conflicts with Marpol and UNCLOS obligations, and includes an assumption of guilt before trial for accidental pollution

Criminalisation

Conclusions: We are not perfect AND are not complacent Criminalisation concerns us all AND is NOT

THE SOLUTION Fair treatment (especially after an accident)

AND the detrimental consequences of criminal law MUST be spelled out clearly

This is NOT about confrontation – but about reality !

www.intertanko.com www.shippingfacts.com

www.themaritimefoundation.com